More MS news articles for July 2002

Judge clears way for lawsuit against HMO

June 28, 2002
Stephen Van Drake
South Florida Business Journal

Linda Flower never expected her quest for health care would become a shell game.

Or a lawsuit.

Diagnosed with multiple sclerosis in the mid-1980s, Flower of West Palm Beach found herself disabled in 1996 and on Social Security disability and Medicare.

Fatigue sidelined her as a full-time fund raiser for the University of Miami, she said.

The disease progressed to where she couldn't drive. It sapped her energy. She could only work three days a week, Flower said.

Flower, 55, said she understood her illness slides into remission and then spikes into relapses, something doctors call a "relapsing-remitting course."

But she never thought buying Humana's Gold Plus Plan in September included suing the Florida HMO and its sales agent Bill Torres. Or that her access to care would wax and wane like her disease.

In her January suit filed in Palm Beach Circuit Court, Flower alleged that Louisville, Ky.-based Humana repeatedly rejected her requests to be treated by UM neurologist and MS researcher William A. Sheremata, who had cared for her since 1992.

She alleged that Humana's Torres fraudulently promised she could continue seeing Sheremata and later betrayed this promise.

Torres and Humana, she claimed, are guilty of intentionally inflicting on her serious emotional harm while permanently aggravating her baseline MS symptoms.

Humana, however, flatly rejects her claims.

"Once we were aware of our member's [Flower's] needs, they were promptly addressed," said Humana spokeswoman Pam Gadinsky said. "We do not believe that Torres, a representative of Humana, made any misrepresentations to Flower."

Sheremata's central role

Flower tells a story of promises made and broken, and about the trust she placed in one medical specialist who helped her for more than a decade.

Since 1992, Sheremata treated her. He sub-specializes in MS and teaches in UM's School of Medicine.

"He is one of the most informed doctors on MS in cutting edge research and drug therapy programs," Flower said. "I was putting my trust in somebody who was the best."

MS is a chronic disease that afflicts about 350,000 people in the United States, according to the National MS Society. It attacks the fatty sheath of myelin that surrounds and protects nerve fibers. It causes nerve impulses to be slowed, distorted or halted, according to neurologists.

Typical symptoms include fatigue, numbness and tingling, spasms, poor bladder control, poor vision, paralysis, and speech and memory deficits.

So when HMO AvMed abandoned its Florida Medicare plan in August 2000, Flower shopped for a substitute that would guarantee Sheremata's continued treatment.

Then her MS was in remission, she said. Flower could walk using a cane or leaning on the arm of her significant other.

"In September 2000, my MS was reasonably quiet," she said. "I was feeling pretty good."

That's when Flower learned about Humana's policy. Torres came to her home, she said, and told her that Sheremata was a Humana contract provider.

"He showed me the book and pointed to his name and said I could continue [seeing] Sheremata," Flower said.

Gadinsky said Sheremata is a "contracted physician with [the] Humana network located several counties from her."

This distance looms large now.

In September 2000, Torres enrolled Flower in Humana. In March 2001, Flower lost her right hand coordination.

"I relapsed with verbal dyslexia, words tangled up, mispronounced words, couldn't spell and fought to find words," Flower said. "It was extraordinarily frustrating and frightening, and I had no medications at the time."

She called her primary care Humana doctor for a referral to Sheremata. That physician's staff telephoned, telling her Sheremata wasn't in the Humana network.

Flower, who said she never got a book of Humana providers, immediately called Humana's office.

"The person taking verbal complaints said simply, `If he's not in the network, he's not in the network.'"

Flower appealed through Humana's internal grievance system and lost.

She called Sheremata in April.

Flower said the UM specialist told her she belonged in the hospital.

"This is an emergency, like a heart attack," she recalled him saying.

On July 25, Sheremata interceded with Humana, admitting Flower to the UM emergency room and hospital where she stayed for 10 days.

Humana paid the bill.

But, some specialists say, the delay alone would probably result in a higher baseline of MS symptoms.

Treatment delay and stress

Five months is a long time for anyone with MS to endure a worsening condition, said Kevin McKinley, chairman of the neurology department for the Ochsner Clinic and Hospital in New Orleans. McKinley has sub-specialized in MS for seven years.

"Even two days of worsening treatment without starting to do something, two weeks, don't wait, and two months, I'd be having a heart attack," he said.

Flower said she saw MRIs taken after her 10 days in UM's hospital with many new brain lesions. McKinley said the MRIs are hard evidence of an aggravated injury.

"Delayed treatment of MS has a significant effect," said Virgilio D. Salanga, chairman of the department of neurology at Cleveland Clinic Florida in Weston. "We have very reasonably effective medications to deal with just exactly that. Someone undergoing relapse should be treated expeditiously, and she should be on medications."

Emotional and physical stress also play a role, McKinley said. Salanga agreed, noting stress exacerbates MS and can bring on an attack or amplify symptoms of the disease.

Stress is a huge factor in MS, according to licensed psychologist Diane Roberts Stoler of Boxford, Mass., north of Boston. She said she specializes in MS stress treatment and treatment of other brain injuries.

"The stress in a brain injury makes you feel helpless, frustrated and causes a shutdown, a flooding effect," Stoler said.

People afflicted with mild brain injuries don't cope well, and it really shuts down the entire system, creating negative energy, she said.

"The negative energy becomes a biochemical component in MS, short-circuiting and pumping out adrenaline," Stoler said. "There's an adrenal shutdown, a state of exhaustion and fatigue, collapse."

McKinley noted that new medications on the market cost between $12,000 and $14,000 a year. These are Avonex, Rebif, Copaxone and Betaseron. Another newer drug, Novantrone, costs about $3,500 a year, McKinley said.

Until her July hospitalization, however, Flower had no medications.

After her release, she said she responded well to what some medical experts now call an obsolete medication, ACTH.

But it worked well for her.

"The nurses call it holy water, a miracle drug, the way it worked for me," Flower said.

Once released, Flower found herself battling Humana in round two.

"I couldn't believe this was happening again," she said. "I was totally dumfounded when I was denied."

Theodore Leopold, Flower's lawyer, said apparently Humana's position is that Sheremata is in its Miami-Dade County network, but not in its Palm Beach County network.

That's not what Torres told Flower, Leopold insisted.

Flower added she couldn't get the newer medications. Humana, she said, limited her to two visits a year with Sheremata and limited her physical therapy.

Flower this time appealed directly to Sheremata, who told her to see him when needed for $80, instead of $250 ­ at least once every three months.

She said Sheremata's staff helped get some trial medications.

"There's absolutely no doubt there's a permanent aggravation of my illness because of Humana's denying me treatment," Flower said. "It's the worst relapse I have ever experienced in 20 years.

"Most of the time, I march along like a little Trojan warrior. And I know when my MS is active and that's when I say, `Please help me.'"

Now, Flower is fighting back, with help from Leopold, who's well known to Humana's executives.

Back to the future?

Flower's case has finally taken flight. On May 31, after six months of legal wrangling, Fort Lauderdale federal Judge Donald M. Middlebrooks ruled Flower's case belonged in Palm Beach Circuit Court.

Humana had removed the suit to federal court, a common defense strategy to limit damages.

Now, it's back before Judge Thomas H. Barkdull III, who this month told Humana's lawyers to turn over documents and answer written questions that Leopold seeks during a critical litigation process called discovery where court rules demand both sides share information.

Leopold said Barkdull has given Humana 10 days to turn over documents and respond to questions.

"I have sent Humana 61 document requests and 25 written questions," Leopold said. "The HMO is stiff-arming us as it did before, and Barkdull has said he will grant legal fees and costs if Humana continues this course."

Humana's lawyer, Steven M. Ziegler of Hollywood, said only Gadinsky could speak for Humana.

Copyright 2002 American City Business Journals Inc.