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Three years ago, Georgia passed a law allowing insureds to sue their managed health care providers. A Fulton County case filed last month may put that law to the test. Plaintiff Theda Lee, a Gwinnett County, Ga., school bus driver, claims that her husband died because her insurance, a preferred provider organization that is part of the state’s health benefit plan, refused to approve a surgical procedure, despite insistence from his doctor that the surgery was critical. James Lee’s physician, in a letter to the managed care provider written two weeks before Lee’s death, demanded a certified letter from the insurer taking “full responsibility for any infection or life threatening event or events that are likely to happen to him if he is denied the procedure.” Dr. Jeffrey Zwiren added, “It is past the time to do the right thing and do the surgical procedure.” Lee, 57, died Dec. 4, 2000, from multiple organ failures caused by systemic infection and septic shock, according to his widow’s suit. Theda Lee has sued the Georgia Department of Community Health, a medical review nurse, and six other organizations that contract with the state to provide health benefits and administration for state employees. Lee v. Georgia Dept. of Community Health, No. 02VS037276H (Fult. St. filed Aug. 21, 2002). The suit for bad-faith denial of benefits, negligence and wrongful death appears to be the first since the 1999 law allowing state tort claims against health maintenance organizations, according to Cathey W. Steinberg, the governor’s consumers’ insurance advocate. That law, O.C.G.A. � 51-1-48, permits plaintiffs to recover actual, but not punitive, damages from an HMO or managed care provider if they can prove they suffered from a poor decision made by the provider. It states the insured has a cause of action if the health care provider does not exercise “ordinary diligence … in a timely and appropriate manner in accordance with the practices and standards of the profession.” A second statute, also enacted in 1999, created an independent panel to review claims before suits are allowed to proceed. If the panel decides in favor of the patient, the managed care provider must provide the treatment and the patient may sue for injuries caused by the denial of treatment. If the patient loses, the law creates a rebuttable presumption that the managed care provider acted properly, a finding that would tend to discourage subsequent litigation. Andrew A. Boisseau, spokesman for the Department of Community Health, said his office disagreed with the suit’s contention that it was at fault in Lee’s death. Lee’s health plan, Boisseau said, “specifically excludes that surgery.” Theda Lee’s attorney, Thomas S. Kenney of Duluth, Ga.’s Kenney & Solomon, said his client didn’t make much money in her job. She and her husband, Kenney said, “counted on their insurance to be there when they needed it, and it wasn’t there.” But, unlike many insureds, Lee is not barred by federal law from suing her managed care provider, Kenney said. ERISA RESTRAINTS A long-standing federal law, the Employee Retirement Income Security Act covers employers who are self-insured and prohibits their employees from suing over denied or delayed treatments. ERISA carved out an exemption for such plans, which mainly involve large companies that operate in more than one state, from regulation by state insurance laws such as the 1999 Georgia law. The Patients’ Rights Act, now stalled in Congress, would permit all insured to sue their managed care providers. But Lee, Kenney said, can sue. “So we should get to the merits” of her claim, he added. According to the complaint, Zwiren saw James Lee Aug. 14, 2000, finding that his patient had trouble walking due to the ulcerated masses on his thighs, which were bleeding and had fungal infections. Zwiren recommended the masses be removed, noting that Lee’s condition was of “life altering severity.” He referred Lee to a vascular surgeon, who approved the surgery and a two- to three-day hospital stay. But a nurse for the PPO’s prior approval unit, in an Oct. 18, 2000, letter, said the procedure was not covered by the plan “regardless of diagnosis or necessity.” Zwiren’s office wrote to the PPO again, enclosing a photograph of Lee’s thighs and noting that the procedure was not cosmetic and the masses were preventing his patient from walking, and causing skin and bladder infections. The PPO again denied coverage. Zwiren then wrote what would be his last appeal letter to the review nurse, dated Nov. 22, 2000. That letter asked for a physician to review the denial of coverage. Zwiren had received no answer by the time Lee was admitted to Gwinnett Medical Center’s intensive care unit Dec. 4, 2000. He died the next day. In this case, the issue may be whether the state falls under the 1999 laws requiring an independent review, Steinberg said. Most similar laws, she said, contain a reference to state-sponsored plans, but Georgia’s does not. Kenney, who is handling the case with Robert J. Solomon and Lara E. Smith of the same firm, said it would be “hypocritical at the very least for the state to say we’ll afford our Georgia citizens these protections and not our employees.” But, he added, should a court determine that the state is not subject to the law, certainly the other six health organizations that contract with the state will be subject to it. Kenney said the Lees asked for an appeal and consequently didn’t have to go through the independent review process. He also said such a process was moot because of James Lee’s death. Boisseau, however, said that state health benefit plan members enrolled with HMOs, not those with indemnity plans, have the same rights to file tort claims as others and the same rights to an independent review. 162 HAVE SOUGHT REVIEWS Since the passage of the law, 162 insureds have requested independent review of decisions by their managed care providers, according to Boisseau. Earlier statistics from the Department of Community Health, which oversees the reviews, showed that as of July 10, 159 had asked for those reviews, with 35 insureds winning coverage, 40 decisions in favor of an HMO, and 57 cases found to be ineligible for review. Steinberg said the Lee case raises questions about the role of physicians when insurance coverage is denied, although she didn’t know what occurred between Lee and his doctors. “It seems to me there is a line when physicians have an ethical, if not legal, obligation” to provide treatment, regardless of insurance coverage, she said. Kenney said his client had considered suing the doctor in this case, but chose not to do so. Zwiren, he said, made no misdiagnosis and committed no malpractice, but was put in a difficult position by the insurer and did his best to help the Lees obtain coverage. “Nobody could have predicted with any certainty” when a life-threatening infection might occur, Kenney said, adding that, in fact, it occurred all too quickly.

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