A jury holds an HMO accountable

April 8, 2005

The doctor wasn't sued because he fought for his patient. But the health plan got socked for millions for denying treatment.

Doctors get angry that insurance companies apparently have the freedom to deny treatment, with no accountability in court. True, a handful of states have passed "patients' rights" laws, allowing patients to sue their health plans for injuries caused by treatment denials. But a recent Supreme Court decision appears to have rolled back those newly gained rights in most instances. As a result, many physicians now feel like they're on the legal hot seat because they're the ones who'll get hauled into court when a treatment denial causes harm-even if they objected to the health plan's decision.

But the picture may not be as bleak as doctors think. In many cases, HMOs may be held accountable in court. And doctors who fight for their patients do escape lawsuits. Consider the case of Herschel Pybas.

Pybas, then 83, was admitted to a hospital in Sherman, TX, in December 1998 with severe anemia, congestive heart failure, emphysema, and renal failure. He had suffered several strokes in previous years, and had a pacemaker. After treatment at the hospital, including continuous supplemental oxygen, his condition improved enough for him to be transferred, on Dec. 31, to a skilled nursing facility operated by Integrated Health Services (IHS). There, under the care of his own physician, internist Nathan Watson Jr., he continued to improve with therapy for his various ailments, including 24-hour oxygen for his emphysema.

Watson objected again, arguing that given Pybas' precarious condition (he was still running a temperature, and still required continuous oxygen), he should remain at the facility over the weekend. But Seeley insisted, and nurse Middleton assured Watson that Pybas would receive "the same level of care and services" at home that he had been receiving at IHS. Watson reluctantly agreed to the discharge on condition that appropriate home healthcare would be arranged, including all necessary medicines and therapy.

Middleton agreed to arrange everything, and ordered an ambulance to transport Pybas home. But as she later testified, she didn't order the supplemental oxygen equipment, claiming it wasn't mentioned in Watson's telephoned discharge orders. The ambulance didn't arrive at IHS until 9 p.m. The ambulance crew noted that Pybas was receiving oxygen at the time, but the nursing staff assured them he wouldn't need it during the ride, or at home. The crew took him home without incident, but when he arrived there, the effort of walking down the hallway left him so exhausted that he was unable to sign the ambulance release forms.

Based on a phone call they'd received earlier that day from nurse Middleton, Pybas' wife and daughter assumed that his oxygen equipment would be delivered by the time he came home. It wasn't, however, and Pybas had a "rough" night without it. The next morning, they called Watson and told him the oxygen hadn't arrived.

"When I heard he'd been sent home without oxygen, I was shocked," Watson recalls. He tried to call Middleton, but by then she had turned off her pager for the weekend. Watson then called the home healthcare service and tried to arrange for oxygen to be sent to Pybas' home, but was told that couldn't be done until after the weekend.

Alarmed by the wife and daughter's reports that Pybas was having difficulty breathing without oxygen, Watson told them to call an ambulance and have him taken to the hospital's ED. When Pybas arrived there, the triage nurse noted that his respiration was "diminished." Watson arrived soon after that and had Pybas admitted-with supplemental oxygen. Although he improved at first, his condition deteriorated, and he died the following week.