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Guest Commentary written by
Stephen Martinez
Stephen Martinez is a retired aerospace engineer who founded the Patients’ Equity Coalition.
My wife’s suffering merited nothing. At least that’s what an arbitrator thought.
In 2010, Lindalee noticed a large lump in her left breast. Her HMO denied her an appointment with her longstanding OBGYN and sent her to a substandard clinic instead.
Years of pain and suffering, multiple surgeries and a diminished quality of life resulted.
We wanted to exercise our constitutional right to seek justice in court, but we learned big healthcare corporations force patients to sign away such rights. “OK,” we thought, “arbitration must be somewhat court-like and fair and efficient.” So we began that process.
It took three years. The arbitrator allowed endless delays, games with witnesses and evidence destruction. Several experts testified that the HMO’s mistakes — multiple misdiagnoses, divergence from procedures, denied follow-up examinations — had caused Lindalee’s issues.
Notably, an unsupervised physician’s assistant had dismissed a breast lump in Lindalee, a 55-year-old post-menopausal woman. Despite a high probability it was cancer, the physician’s assistant prescribed warm compresses and a sports bra and advised Lindalee to avoid chocolate.
Arbitration was almost as bad as the cancer. An exhausting deposition brought Lindalee to tears. The HMO’s attorney then grilled her for five hours at the arbitration. The attorney argued Lindalee was entirely to blame for her breast cancer spreading, which struck me as victim blaming.
The verdict was shocking. “The Arbitrator finds that [the HMO’s] treatment … was within the standard of care … Claimants are to take nothing.”
This was despite two HMO surgeons, with 60 years of combined breast cancer expertise, testifying that the HMO had failed to follow its standard of care.
Surely our experience of HMO error, yet head-scratching arbitration outcome must be an outlier, we thought.
Lindalee had just finished the breast cancer ordeal when she developed a blockage in her intestine. It was clearly captured in a CT scan. For two years, the HMO failed to act on that report’s recommendations.
After finally getting a gastroenterology referral, Lindalee was seen by an unsupervised nurse practitioner who failed to diagnose the issue. When Lindalee finally got to a GI doctor, he told her plainly, “This could kill you.” She underwent emergency surgery.
Faced with another HMO error, we proceeded with arbitration again. We had chalked up our first experience as a fluke. But just like the first case, this process also took three years.
This time the HMO’s attorney secretly obtained 20 years of Lindalee’s psychiatric records for a gastrointestinal case — an extraordinary health privacy law breach. He tried to use these private records, with no medical relevance, to torment Lindalee. We later learned that such invasions of privacy are sometimes used by HMOs as a litigation tactic.
The second arbitration was more of a circus than the first. The arbitrator allowed HMO witnesses to use language about my wife that is not fit to print. In the face of incredible insults and stacked odds, we gave up.
Later I learned the arbitrator selection system creates a financial incentive for arbitrators to rule in favor of HMOs. If an arbitrator rules against an HMO, its attorneys would likely decline to select that arbitrator in future cases.
This has been documented in multiple state reports. “The fairness of arbitration depends on the neutrality of arbitrators,” but incentives for arbitrators “favor the repeat player,” a blue ribbon panel found after a California Supreme Court case in 1997.
What if we had an unbiased, neutral third party, like the California Attorney General, choose qualified arbitrators in medical malpractice cases? Would this result in more neutral arbitrators who aren’t so dependent on, or motivated by, income from HMOs? Would it result in holding HMOs accountable when bad medical decisions cause patient suffering or even take a patient’s life?
I think so.
I was devastated to lose Lindalee to cancer in March 2023. She was my wife and best friend of 42 years. She had spent six of her last years seeking justice, and it had taken a toll. I’d give anything to get that time back.
My wish is to make it so other families don’t face the same injustice after such a devastating and preventable loss. Before Lindalee passed, I promised her I’d keep the fight alive.
Attacking HMO chief executives is not the way to achieve systemic reform, though. Changing the rigged arbitration system is.
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