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kaiser lawsuit, kaiser patients, kaiser permanente, kaiser tech, kaiser workers, kp lawyer watch

EMR Humor, KaiserTurf™, and more KP LAWYER WATCH
Bruce Friedman of Lab Soft News has his finger on the pulse of the EMR game. I'm sure it's mere coincidence that his scenario covers the highlights of the recent Kaiserpocalypse. I just saw a comment that pointed out that the Department of Defense has been wasting $5-$6 billion dollars of the taxpayer's money on an even bigger EMR disaster. And, quel surprise, the honcho in charge, William Winkenwerder Jr., comes from the Kaiser ranks. This perhaps explains why he tried to fix the EMR's problems by changing the name/acronym from CHCS II to AHLTA. ;-)

I wonder how much Kaiser is paying this guy?

Today's KP LAWYER WATCH is a sordid story of what happens when Kaiser doctors, who enroll their families in the Kaiser system, get tumbled into the arbitration system. A Kaiser doctor's wife suffered renal failure, and he determined it was because she had been given the wrong drug. Being a doctor, he thought he could just point this out to the arbitrator. However, the Kaiser lawyers argued that his specialty didn't cover his wife's condition, so he couldn't qualify as a medical expert. For some strange reason the arbitration judge bought the doctors-don't-know-anything-beyond-their-narrow-specialty argument, so the doctor then went to the regular court system to try to address the unfairness of the arbitration process. It looks like he didn't hire a lawyer - probably because he figured the judges in the regular court system would notice he had a medical degree and quickly order a new arbitration. The plaintiffs evidently lost their court case - the document below is from their appeal, which concluded just a couple of weeks ago.

Considering that the judges admit that they refused to look at certain evidence and could only act within a very narrow sphere and are supposed to give pro per plaintiffs the maximum latitude, this judicial opinion is incredibly mean-spirited and rude. Also keep in mind the plaintiffs were paying to be trashed - the court system is ridiculously expensive even without a lawyer. I think the plaintiffs should speedily complain to the nearest judicial oversight commission (though they will probably just stick up for their brother-in-robes, too).

I'm going to highlight in bold where the judges turn "judgmental", despite the fact their own point is they don't really know what happened. Click on the link below to get the full text (it's long - practically the whole document):

The appellants in this case, appearing in propria persona, misunderstand the limited scope of judicial review of an arbitration award. Disappointed that an arbitrator ruled the Kaiser doctors treating [the patient] did not fall below the standard of care and the medicines they prescribed did not cause her renal failure, [the patient] and her husband...repeat the same arguments they made to the arbitrator and the trial court. Like the trial court’s, our review of the arbitral award is narrowly circumscribed...

[The plaintiffs] fail to prove any of the statutory grounds justifying judicial intrusion into the arbitral process. We affirm.

BACKGROUND
[The plaintiffs] contend that [the Kaiser doctor], negligently prescribed and administered the drug Zometa to treat [the patient's] hypercalcemia, and thereafter [another Kaiser doctor] negligently prescribed and administered the drug Gleevec to treat her hypereosinophilia. Both doctors were employed by Kaiser Foundation Hospitals. The drugs, either individually or cumulatively, according to [the plaintiffs], caused her to suffer renal failure. The arbitrator found the preponderance of the evidence established that both doctors acted within the standard of care and that the medications did not cause [the plaintiffs] renal failure. The trial court denied [the plaintiffs'] petition to vacate the arbitral award. The court recognized the limited scope of judicial review of an arbitral award; pointed out that because [the plaintiffs] failed to provide a transcript of the arbitration proceedings, the court was unable to ascertain whether the arbitrator had disclosed any bias; and reminded the [the plaintiffs] that the arbitrator had resolved the issue as to whether Kaiser’s lawyer improperly “ambushed” their expert during a deposition.

DISCUSSION
...[The plaintiffs] make a strained attempt to recast their same contentions as grounds to vacate the award. As we decipher their arguments, it looks as though they believe the award was procured by fraud because one of the doctors perjured herself and altered a medical record...the arbitrator was corrupt because he had been chosen by Kaiser as an arbitrator before and he embellished the facts...and their rights were substantially prejudiced because the arbitrator, who did not remain impartial, improperly excluded [the patient's husband] as an expert and their expert’s revised declaration, and refused to give them sufficient time to make a closing argument...

We do not know how to say any more plainly than the trial court that we are not at liberty to review the award for errors of law or fact...The Legislature allows vacation of an award only in those rare instances where blatant misconduct has corrupted the arbitral process itself...Yet [the plaintiffs] would have us skirt this fundamental principle by calling legal or factual error some kind of fraud or corruption. [The plaintiffs] fail to demonstrate the type of egregious misconduct that necessitates judicial intervention into the arbitral process.

Without the benefit of a transcript of the arbitration hearing, we have no evidence the arbitrator was biased or corrupt. [The plaintiffs] wild aspersions on the arbitrator’s character, motivation, and competency are without any support in the record before us. [Nor are we inclined to receive evidence not submitted to the trial court. Accordingly, [the plaintiffs']’ “Motion to Introduce Evidence not Submitted to the Lower Court,” filed May 30, 2006, is denied.]

Thus, like the trial court, we find no merit to their contentions that the arbitrator was corrupt or biased because he ruled against them on the admissibility of evidence or because he had been appointed by Kaiser in other cases. The arbitrator ruled that [the patient's husband] was not competent as an expert in the medical specialties involved in his wife’s treatment, a finding insulated from judicial review. Similarly, we cannot review his findings of fact or determine whether he embellished those facts or not. Nor can we reassess whether [the Kaiser doctor] was believable or whether, as [the plaintiffs] insist, she lied and altered medical records. These are findings within the exclusive domain of the arbitrator.

The arbitrator concluded [the plaintiff's] allegation that the Kaiser lawyer "ambushed" their expert during a deposition had no bearing on the underlying truth of the facts. We agree with the trial court that we have no authority to disturb this finding in the same way we are impotent to disturb any of the other factual or legal findings. The arbitrator did, contrary to [the plaintiffs] argument on appeal, allow them extra time to submit a written closing argument. They availed themselves of the privilege and submitted a lengthy argument for the arbitrator’s consideration.

Citing federal cases, [the plaintiffs] urge us to vacate the award because of the arbitrator’s manifest disregard of the facts and the law...The federal courts in the Second Circuit Court of Appeals cannot enlarge the statutory grounds applicable to arbitral awards in California. We remain constrained by the exclusive grounds set forth in section 1286.2...Nor do the cases describing earlier flaws in Kaiser’s arbitration program have any bearing on the facts before us...Unlike the disgruntled patients in these cases, [the plaintiffs] fail to present any evidence of misconduct or bias. Rather, they reargue the same evidence they presented to the arbitrator, insisting once again that the evidence supports their charge of medical malpractice. By statute, their reiterations must fall on deaf ears...
The judgment is affirmed.

For people who have never been through Kaiser's arbitration process, this might look like a situation of he-said she-said that somehow defaults to support the arbitration judge. However, once you talk to a few people who have actually been through Kaiser's arbitration process, you will find the same issues coming up time and time after time: Kaiser doctors lied, Kaiser lawyers played dirty tricks, and the arbitrator showed favoritism toward Kaiser by refusing to acknowledge or address these problems.

To give a specific example from an arbitration that's going on right now: I know a woman who was the victim of a blatant HIPAA violation by Kaiser - and she has the evidence to show that Kaiser's lawyer lied about how the violation happened, too. However, par for the course, neither the Feds or State agencies are addressing the matter swiftly. When she attempted to complain to the Bar Association, she was told "the matter does not warrant disciplinary action." The problem is that this HIPAA violation has corrupted the arbitration process, and the woman, who was abandoned by a slacker lawyer, is now stuck representing herself and the arbitration judge isn't listening to her. So what will probably happen is that the woman will be shafted by the arbitration process, and then if she attempts to go to the regular courts, she will be treated like dirt (like the plaintiff horror story above).

In sum, judges in the regular court system seem unaware of the widespread perception of fraud and corruption in the arbitration process, supported as far as I can tell by every patient ever forced to go through that process, and in the absence of a signed confession from the arbitration judge they prefer to belittle plaintiffs.