More MS news articles for January 2000

A Disabled Attorney's Novel Strategy Puts A Civil-Rights Spin on HMO Litigation

NOTE-this is only the first part of a long article

January 26, 2000

By MILO GEYELIN
Staff Reporter of THE WALL STREET JOURNAL

Over lunch with a group of lawyers from the Texas Medical Association four years ago, attorney Robert Provan heard how doctors trying to treat chronically ill patients in managed-care plans were being dropped from their contracts, apparently for running up big bills.

Mr. Provan threw out an idea: Why couldn't the doctors sue under the Americans with Disabilities Act, the federal law that protects the chronically ill and other disabled people from discrimination? The law, he explained, extends not only to the disabled, but also to those with whom they have a relationship. "Can you think of a more important relationship that a person with a disability has," he asked, "than the one he has with his physician?"

From that chance exchange was born one of the more novel legal challenges now facing the managed health-care industry. Intrigued by Mr. Provan's theory, the Texas Medical Association backed him in a lawsuit against two leading health-maintenance organizations and a San Antonio physicians' group. Late last year, he also lined up the financial support of a powerful group of plaintiffs lawyers and, more important, the free professional services of three of its litigators. Now, Mr. Provan's suit, once considered a long shot, is scheduled for trial in March in federal court in San Antonio, and is poised to become a major test case.

The suit is on behalf of 10 chronically ill patients who contend they were denied quality medical treatment, as well as a doctor who says he was fired for trying to provide it. At issue is whether the physicians' group and the two HMOs, Humana Health Plans of Texas, a unit of Humana Inc., Louisville, Ky., and PacifiCare of Texas, a unit of PacifiCare Health Systems, Cypress, Calif., violated the ADA by limiting care for chronically ill patients because they are more costly to treat.

By making discrimination the issue, Mr. Provan has sidestepped the industry's traditional defense that disputes over quality of care at HMOs fall under the jurisdiction of the Employee Retirement Income Security Act. The federal law regulates employer-sponsored benefit plans and sharply curtails potential damages in lawsuits against HMOs. But in refusing to dismiss Mr. Provan's case, U.S. District Judge Fred Biery ruled in late 1998 that the financial incentives HMOs impose on providers to hold down costs can be the basis of a discrimination claim if the result is unfair treatment of the chronically ill.

By itself, that was a major victory. "It allows us to put medical decision-making into a civil-rights context," says Robert Griss, director of the Center on Disability and Health, a research and advocacy group based in Washington, D.C.

But for Mr. Provan, 55 years old, the significance was much more personal. The attorney, who weighs 85 pounds and is 4 feet 10 inches tall, was crippled by polio at age five. With the onset of postpolio syndrome in recent years, he sleeps with the aid of a respirator. But he says he owes his life to the extraordinary commitment of a Chicago surgeon who performed a series of novel surgeries that enabled Mr. Provan to walk without braces by age 10.

"I'm a living testament to what American medicine has been in the past and what I hope it will be in the future," he says. "But I often wonder if we had managed care back then, would I be here today?"

Humana and PacifiCare say none of Mr. Provan's clients can point to any care that was inappropriately denied, let alone to any act of discrimination. So does HealthTexas Medical Group of San Antonio, the 27-doctor group named as a defendant. A fledgling nonprofit when it was founded in 1994 by three brothers and a fourth physician, HealthTexas has grown into one of the biggest physicians networks serving the city's poor.

Robert, Rowland and Richard Reyna, Stanford Medical School graduates who grew up on the city's gritty west side, say they launched HealthTexas to provide community-based health care to San Antonio's large and underserved Hispanic population. "Our agenda is to take care of patients," says Robert Reyna, 50, the network's medical director.

An Unhappy Specialist

HealthTexas inadvertently set the Provan suit in motion in May 1986 by filing a $1 million claim against rheumatologist Jorge Zamora, whom it had fired three days earlier in an employment dispute. The Reynas contend Dr. Zamora tried to solicit former patients after he left, in violation of a noncompete agreement. They say the specialist was unhappy with his $150,000-a-year salary and his responsibilities as a primary-care physician.

But Dr. Zamora traces the dispute to his concern that chronically ill patients covered by Humana and PacifiCare plans weren't receiving adequate care because of cost-saving incentives written into the group's contracts with those plans. He claims disabled patients were targeted and, through harassment or neglect, encouraged to leave.

Some waited as long as six or seven hours for scheduled appointments, he says, and they had more difficulty than non-HMO members getting authorization for hospital admissions or referrals to specialists. He contends that his treatment decisions for HMO enrollees were second-guessed by the Reynas at weekly medical staff meetings, at which Humana and PacifiCare representatives were present