Permanente Patients on this public service web site.
granted to mirror if credit to the source is given and the material is
not offered for sale.
Why the thistle is used
as a logo on these web pages
by Stephen Osman
How Many Doctors Should Be Blamed?
aren't getting the whole story on
their HMOs or their doctors
from the state of California." -
Levy, whose daughter died after her
cancer was misdiagnosed.
Crusader: Hillarie Levy in front of a photo of her daughter,
Robyn Libitsky, who died this year at age 29. Kaiser
lawyer says she's bent on vengeance. Others say she may have
a serious problem with a state law.
A mother whose
daughter died after Kaiser physicians
missed her cancer
is fighting to change a law that let the HMO report only one of the
to the state.
By Debora Vrana
Times Staff Writer
During the last
five months of 1999, Robyn Libitsky
went to Kaiser Permanente
13 times with complaints of piercing back pain, only to be misdiagnosed
and sent away with Tylenol, a prescription for sleep aids, physical
and an X-ray to the wrong part of her back.
By the time
Libitsky was diagnosed with Ewing's
sarcoma, a rare fast-growing
cancer, it was too late. She died last February at 29.
Libitsky brought a malpractice
complaint against Kaiser.
In May 2002, arbitrators awarded her nearly $1 million in damages,
that Kaiser and "its medical providers were negligent in the belated
and treatment of claimant's Ewing's sarcoma."
contended that Libitsky's chance of
survival would have
been 65% had the cancer been detected during any of her first
But when, as
required by law, the nation's largest
nonprofit HMO told
the Medical Board of California that arbitrators had ruled against it,
Kaiser officials chose to name just one of six doctors listed in the
mother, Hillarie Levy of Simi
Valley, has launched a
crusade questioning why state law allows Kaiser to decide which doctors
involved in arbitration awards will have their names forwarded to the
Board, a state agency that licenses physicians.
attorney calls her a grief-stricken
mom bent on vengeance,
others say she may have identified a serious problem with a law that
healthcare providers or their malpractice insurers to report at least
doctor after any arbitration award.
"The law is
to make sure the public and
consumers are aware of
what is going on — period," said state Sen. Liz Figueroa
wrote legislation in 2002 requiring the Medical Board to post a
http://robynlibitsky.kaiserpapers.info/images/disciplinary history on
its website. "If we need to remedy this by
means, we will look at that."
Kaiser said it
handled the Libitsky award properly
and unfailingly followed
the law in reporting doctors to the Medical Board. And officials there
say they cannot recall another case in which their decision about whom
to report has been questioned.
The HMO says it
always reports doctors identified by
having failed to meet standards of care. In cases where the arbitrator
is less clear and more than one doctor is involved — such as
case — Kaiser and its attorneys look at the facts to decide
be reported, Kaiser officials said.
"We have to
things together in each case and
make our best determination
on whom to report — and we take that responsibility very
Dr. David Lerman, legal counsel for the Oakland-based medical group's
24-year-old aide to Los Angeles
County Supervisor Zev
Yaroslavsky who was planning to start law school the next year, first
to Kaiser's emergency room in Woodland Hills in August 1999 complaining
of severe back pain after having moved some boxes.
She was given a
narcotic pain medication and sent
home, but was back
at Kaiser two days http://robynlibitsky.kaiserpapers.info/images/later,
saying the pain was keeping her awake,
to a summary of the case by arbitrators Joseph S. D'Antony, a Laguna
lawyer, and Raymond Cardenas, a retired judge. A doctor told her muscle
strain takes a long time to heal, and gave her medication to help her
After her fifth
visit, Libitsky was diagnosed with
chronic back pain
and by November had begun physical therapy, the arbitrators wrote. On
28 a physical therapist noted a mass below the skin on her back and
a doctor, who ordered an X-ray. But the X-ray was taken of the wrong
of the back, further delaying a correct diagnosis. Finally, on Jan. 4,
a doctor ordered another X-ray; the cancer was diagnosed three days
arbitrator, Sherman Oaks lawyer Alan
Rushfeldt, disagreed with
the majority opinion, concluding that the evidence presented did not
Kaiser doctors were negligent. Even if they were, Libitsky failed to
that her cancer was of a type that could have been cured had it been
diagnosed in time, Rushfeldt wrote.
in the case, B. Casey Yim of Los
Angeles, said that
none of the doctors in the Libitsky case should have been reported to
Medical Board because it was not clear any of them had done anything
But becahttp://robynlibitsky.kaiserpapers.info/images/use the law
requires at least one doctor to be reported in such
cases, Kaiser chose to forward the name of Dr. Shiu-Kwan Fok.
Fok, a physical
medicine and rehabilitation
specialist at Kaiser's Woodland
Hills Medical Center, had seen Libitsky in late November. He did not
calls seeking comment.
As a result of
Kaiser's report, the Medical Board
notes the date and
amount of the Libitsky arbitration award on Fok's record in its public
database at http://www.medbd.ca.gov . (The law also requires providers
to report at least one doctor involved in settlements or court
of more than $30,000.)
daughter died this year, Levy decided to
launch her campaign
to change the law, assembling packets of information —
complete with her
daughter's high school graduation pictures — for legislators
to get the word out: People aren't
getting the whole
story on their HMOs or their doctors from the state of California,"
Asked about the
Libitsky case, the state's top HMO
regulator said it
raised questions worth addressing. Cindy Ehnes, director of the state
of Managed Health Care, said it might be time for legislation to
the transparency of the malpractice arbitration process.
"As we ask
consumers to make more and more of the
decisions for their
healthcare needs, we may need to go back and take a different
tack on this," she said.
But Lerman, the
Kaiser legal counsel, points out
that current law already
provides for a second look at arbitration awards by the Medical Board's
staff, which has authority to scrutinize case records to see whether
doctors involved should be reported.
Some are not
reassured by this. "The medical board
hasn't had a great
record of being aggressive about consumer complaints," said Jerry
of the Foundation for Taxpayer and Consumer Rights, a Santa Monica
group active on health issues. "There's a sense the Medical Board is
close to physicians."
investigators examined the Libitsky case but
did not recommend
that the award be noted on the records of any other doctors but Fok,
David Thornton, executive director of the Medical Board.
Figueroa, the state senator. After
reading the Libitsky
arbitration decision, Figueroa said she thought the award should be
on the Medical Board record of all six doctors named.
and the Medical Board is equally
wrong," Figueroa said,
adding that she would ask the board to reconsider the case.
arbitration decisions are confidential
unless released by family
members, as in the Libitsky case, it is impossible for the public to
how often doctors who lose such cases are not reported to the Medical
2003-04 fiscal year, 60 arbitration
awards were reported
to the Medical Board, and 36 were reported the following year, board
said. Kaiser accounts for about 85% of those, because the HMO requires
its members to arbitrate rather than sue over any dispute.
groups say that a doctor's legal
history isn't always
a good indicator of the quality of care given by the doctor. For
these groups say, physicians with tougher cases may have more
marks on their records.
"I just don't
think the consumer gets much
information from these awards,"
said Dr. Robert Hertzka, with the California Medical Assn., which
At the Medical
Board, Thornton said he sympathized
with Levy's grief
over her daughter's death, but said doctors were human and could make
an extremely sad case," he said. "If I was in
her position, I'd
be doing the same thing, questioning the system. But from where I sit,
inside the system, I know physicians can make mistakes and that doesn't
mean they are bad physicians."
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