Attorney Jeff Milman on Kaiser Permanente Malpractice

This is a transcript from an interview with Jeff Milman, a member of the Advocate Law Group Network who has been practicing law for 26 years and specializes in medical negligence. Attorney Milman is a member of ABOTA, the American Board of Trial Advocates, an association where you have to have demonstrated proficiency in trying at least a minimum of 20 jury trials. He was president of the Orange County Trial Lawyers in 2004 and his practice is located in Newport Beach, California.

Interviewer: What has been your involvement with claims against Kaiser Permanente?

Jeff Milman: Well, we have had a number of Kaiser cases over the years. We have done everything from the current book of cases in Northern California, which deals with the Kaiser kidney transplant program that shut down, the press that it carried and a lot of victims that they left in their wake. Our firm and I also handle individual medical negligence cases against Kaiser, both in and out of California.

Interviewer: What types of claims do you see most frequently against Kaiser?

Jeff Milman: I see all different sorts of cases and I can't really point you to one type. Kaiser, by virtue of the fact that it's an HMO handling a lot of patients, seems to draw claims. Many of the claims are due to a patient's inability to get treated. It's the old saying, "The squeaky wheel gets the grease" and some patients are not as proactive as others. So, I see patients who do not receive good treatment. I see patients that don't get the needed tests that they deserve and I see a number of misdiagnosis cases. The cases against Kaiser come in all shapes and sizes.

Interviewer: Can you provide some examples of some of the cases that you've had?

Jeff Milman: I've had everything from birth injury cases, where a mother will be in labor at a Kaiser facility and the facility and its staff doesn't appreciate the gravity of the fetal monitoring strips and you have a baby that's born with profound fetal hypoxia. They call it hypoxic ischemia and it's basically brain damage. I also have cases where there's misdiagnosis of breast cancer. I recently did one where there was a common bile duct which had been cut during a laparoscopic colosesectomy, which is a fancy word for a laparoscopic gallbladder removal, and the physician who did that hid the true nature of this woman's problem for four years before somebody else from Kaiser finally told her what the problems were. By that time, her labs had gone so haywire that she eventually will need a liver transplant.

Interviewer: How has Kaiser Permanente changed the way that it does business over the last few years?

Jeff Milman: In two basic respects. When I first started practicing these many years ago, it would be near impossible to get a case to finished arbitration with Kaiser. What some people don't know is that you do not get a jury trial when you bring a claim against Kaiser; you have to abide by an arbitration proceeding. The delays were so egregious that eventually our Supreme Court in California in a case called Engalla told Kaiser that, "If you continue this practice, people will be able to go outside of the arbitration system and sue you in open court." So, Kaiser revamped the way its system of legal proceedings. They set up an Office of the Independent Administrator, which is basically a department that handles these cases.

Now, they are much more aggressive at bringing any claims to fruition by setting dates and deadlines and getting these cases through its system. The other basic way that Kaiser has improved is the doctors they hire. Kaiser, at one point, had a bad reputation for hiring a lot of foreign doctors, some who couldn't speak English, some who were ill-trained and some who came from other states where they weren't able to practice medicine there. In the past decade, Kaiser has done an excellent job of recruiting some very young dedicated physicians and also bringing in some very well credentialed physicians. And if you're a physician getting out of medical school and looking at the prospect of setting up a rather costly private practice, sometimes a Kaiser-like system has a lot of advantages, where basically all of your administration is taken care of. You see a certain number of patients, and while you may not make as much, your quality of life may be different.

Interviewer: Are other HMOs in the State of California similar to Kaiser's way of using arbitration rather than letting people go through the traditional legal system?

Jeff Milman: Yes. There are some HMOs, primarily in Northern California, that are similar to Kaiser. The VA medical system, which is covered under the federal rules, is a Kaiser-like system. What we're really talking about is an HMO, and that's where you are assigned a primary care physician. In order to see other specialists or get certain tests, you have to go through that layer. It's not like, for example, if you think you might have cancer, you immediately can set up the meeting with an oncologist. You have to go to your primary care physician. One of the problems with that system is that there are utilization evaluations. In other words, if you're an orthopedist in that system, you may be evaluated on how many X rays you order for your patients versus the next orthopedist. So in the back of your mind, there may be that temptation that Big Brother's watching.

Interviewer: What still needs to be changed at Kaiser in your opinion?

Jeff Milman: Well, that's a tough issue. I think one of the things that needs to be changed statewide for all of California, not just Kaiser, is a change on the cap on damages. I think that with a $250,000 cap on damages, a lot of systems, including Kaiser, don't have a real impetus to change the way they do business. If they are slapped a little harder economically, they would make different changes. The other thing I think that would help a Kaiser system is, instead of us all hearing commercials telling us how dedicated they are, how you should thrive and handing you a patient handbook which asks you to self-diagnose, I think what would be better is easier ways to get appointments and faster ways to get tests.

Interviewer: Many of the Internet blogs criticize Kaiser for providing inadequate treatment, but yet others seem to praise them for excellent treatment. Any idea why there's such a difference of opinion?

Jeff Milman: Well, that seems to be my experience, too. I'm not saying Kaiser's a bad system because some people absolutely love them. If you are proactive, you get good treatment. Unfortunately, some have claimed that f you're not sick, you get excellent treatment. If you find the right physicians to treat you at Kaiser, you may be happy as a pea in a pod. The people I come in contact with are usually not the happy ones. They're the ones who feel they've been wronged and seek out a lawyer.

Interviewer: Can you explain Kaiser's patient handbook and whether or not you think it's helpful?

Jeff Milman: I'm looking at it right now. It's about a three-inch thick handbook that you are given when you become a Kaiser new member at Kaiser. It has every disease known to man in there and it basically takes you step-by-step through this. The problem is that you're asking patients oftentimes to self-diagnose. I had a case against Kaiser where I was representing a young man who did not have a spleen since childhood. When you are asplenic, meaning no spleen, you are at risk for getting infections because you don't have the same immune system. It's compromised.

We alleged in that case that Kaiser had not given him the repeated Pneumovax that was required and hadn't properly educated him about what to do if he presented with a fever. So what happens is, he comes home from his job as an aircraft mechanic and has what he feels is flu-like, an elevated fever. His wife puts him to bed with Theraflu and the next morning he's tingling. He wakes up approximately a month later with all four of his extremities removed. Quadruple amputee. In that case, we got a hold of the Kaiser patient handbook and we were looking for clues as to what Kaiser says to do when you have flu-like symptoms.

My own infectious disease expert said he'd been practicing medicine for 28 years and if he followed half the stuff, he'd be dead. So it could be a help. It could be a burden. It depends how you approach that handbook.

Interviewer: You had mentioned that the company has a history of hiring doctors without adequate experience. How has that changed?

Jeff Milman: There are still some very bad doctors; make no mistake. If you are a partner at Kaiser where you've put in your time, you can leave a trail of bodies and you continue to remain at Kaiser. But as I indicated earlier, Kaiser has made a dedicated effort over the past ten years or so of hiring some excellent doctors. So it's the old adage "It's not what you know, it's who you know" and if you're proactive, you may get the really good doctor.

Interviewer: What happens when a doctor is found liable for medical malpractice at Kaiser?

Jeff Milman: Well, it's no different than any doctor in California, with the exception that if you're part of a small medical group, your partners may say, "What the heck is going on? Our partner's been guilty of malpractice." Or you may not be able to get staff privileges at a local hospital if you are a doctor who has repeated malpractice verdicts. With Kaiser, you will have a job. You will continue to practice medicine. They do have their own internal review board, which in my humble opinion, is not very effective.

But in California, whenever a doctor settles a case or there is a verdict against them, their name goes to two places: one is to a national databank. Secondly, there is an automatic requirement that the person be reported to the California Medical Board and it will not be unheard of for me to receive a phone call a couple years after I've gotten a verdict against somebody or a settlement, where the Attorney General will be investigating that doctor or nurse or practitioner and that investigation can result in anything from zero all the way up to loss of license and anything in between, such as continuing education or what have you.

Interviewer: What should consumers consider when hiring an attorney to represent them against Kaiser specifically?

Jeff Milman: What they want is an attorney that specializes in medical negligence, not someone who one day does family law and the next day does criminal and then dabbles in medical malpractice. Medical negligence law is very difficult. It's very costly. You have to have the right experts. The other thing they should ask an attorney is what experience they personally have had against Kaiser. There may be several attorneys who do medical negligence but are not really comfortable with the Kaiser arbitration system. So you want to get somebody who's experienced, who in your gut you feel will represent you, who has the financial wherewithal to get good experts and to prosecute your case fully.

Interviewer: Why are damages limited in California? Do you think that this will change in the future?

Jeff Milman: Now you've got me on a rant. In 1975, the insurance carriers for the medical community lost a bunch of money investing. In order to recoup their investment, they manufactured this phony tort crisis. They went around to the legislature saying, "Oh my god, we have to pass these special set of laws. If we don't, doctors will be delivering babies in the street." So the cap on damages of $250,000 was instituted. The claim was that since the doctors would have to pay less in premiums, they would pass those savings on to their patients and that would keep premiums on health insurance and medical malpractice down. Well, of course, none of that has occurred.

In some states that have passed such tort reform laws, their Supreme Courts have listed that as unconstitutional. Well, California's Supreme Court affirmed it and since 1975, we've had this misguided set of laws on the books which have never been changed. Depending on who you talk to, if they'd even put in a simple cost of living increase to keep up with inflation, that cap would today be seven figures: $1.1, $1.2 million.

Every year there's talk about changing it. However, I don't see it changing in the future. I'm wishing it will. I think that for it to change, we would need a courageous legislature and we would need to get together with the medical lobby. Many physicians who feel the same as we do, that it's unfair. We would have to jointly sponsor a bill that the legislature could embrace. But I don't see that happening in the near future.

So I do suggest that anyone who is in the know to contact their legislatures. The more public outcry there is, the sooner that misguided set of laws will be altered. Even a small change, such as a $500,000 cap, would be welcome. We have the lowest cap in the nation practically.

Interviewer: How does Kaiser Permanente's claim process differ from another insurance company's process?

Jeff Milman: Well, if you bring a claim against a doctor who is not part of the Kaiser system, you would bring a lawsuit, and depending if that doctor has a private arbitration agreement, then that case may be diverted out of the court system. That's the kind of agreement you always see when you go into a doctor's office that they ask you to sign. Some of those will wind up in arbitration. But if you sue a regular doctor, you're going to be in superior court. There'll be a defense lawyer. You'll have a lawyer and you'll get your day before a jury.

Kaiser's system is different and that system is currently with the OIA, or Office of Independent Administrator. What you do is, instead of filing a lawsuit, you file a demand for arbitration and then depending on the complexity of the case, there will be a neutral arbitrator who will hear the case eventually and make a binding decision, which usually is not subject to judicial review. That means you don't get appeals. Sometimes, if the case is a big one, they'll be party arbitrators, where the claimant, meaning the person who's bringing a claim against Kaiser, has their own arbitrator. Kaiser themselves has their arbitrator and then there's the neutral. So you get a three-panel. The party arbitrators are usually nothing more than hired guns.

Interviewer: Does the claimant have to pay for their own arbitrator to go through the process?

Jeff Milman: Yes. However, there is now the ability to sign a waiver of party arbitrator form and to sign a form whereby you agree to have one single neutral arbitrator and the whole process paid by Kaiser.

Interviewer: Does Kaiser choose that arbitrator?

Jeff Milman: Well, that's the trick. What generally happens is that you are presented, once you file a claim against Kaiser with a list of ten arbitrators, and its rank and strike. You'll strike a few; they'll strike a few and eventually one person will be picked. What I prefer to do is circumvent that and once I find out who Kaiser's defense lawyer is, since we all know each other, hopefully nine times out of ten we can usually stipulate to a retired judge or someone we know to decide the case. So that's one of the most important things, besides who your attorney is, is who that individual is going to be to decide that case if it goes all the way.

Interviewer: What advice would you give to consumers on how to deal with everyday claims at Kaiser?

Jeff Milman: What you need to do is - if you feel you've been abused, that there's been medical malpractice, you need to collect evidence. What you should do is write down any of your thoughts and conversations and don't haul off and write all sorts of accusatory letters and become a real pain, because that can come back to haunt you. The next thing is to get, as soon as you can, a complete copy of your medical chart, which sometimes can be problematic with Kaiser. If need be, you can have the chart mailed to an outside physician if you know someone. If not, just get it from the records department.

Look through the chart, review it and make sure it either is or is not correct and be prepared to discuss that, and then go get yourself a good lawyer to look it over.

Interviewer: Can you give explain the arbitration process in general?

Jeff Milman: Yes, let's assume you've got a case, whether it be one arbitrator or a party – where there's two party arbitrators and then a neutral. When the case first starts, everybody's going to start doing discovery. So, there's usually a scheduling conference that occurs early on where the dates will be set. For example, by such-and-such a date the parties will have agreed to at least discuss settlement. By such-and-such a date, the parties will have designated their experts. By such-and-such a date, we are going to have the arbitration. So, everybody has their calendars on this conference call.

That sets the pattern for the case. Then, if the case resolves through discovery, experts or a settlement conference, that's great. If not, you show up at the appointed time and place. Some of these arbitrations may go for days or weeks and they're very similar to a jury trial. It's just somewhat more informal. It's in a conference room. The rules of evidence and the presentations are a little more relaxed, especially if you're dealing with a retired judge and the case resolves by eventually a verdict of some type.

Interviewer: What's the difference between arbitration and mediation?

Jeff Milman: Arbitration is where there is a hearing. It is scheduled. You submit briefs. You put on witnesses, whether it be your client testifying, whether it be experts or whether you're cross-examining. Mediation is basically a process whereby you submit a brief for purposes of settlement. It may be an open brief or confidential. You'll show up to the mediation, which may be scheduled for several hours.

You're not presenting evidence. The mediator's job is to bounce back and forth between rooms, and as I lovingly say, "Try and work out a deal where everybody's equally unhappy." In other words, to convince them to pay more money than they want and to get us to accept less money than we want. Arbitrations are binding with Kaiser. Mediation is a voluntary process and I might tell you some of these cases I've done result in several mediations before the case is resolved. For example, I recently had a brain damaged baby case against Kaiser and I drove away from the first mediation with a certain offer. By the second mediation, they were up to a couple million and by the third we resolved it.

Arbitration settles the claim with finality, because that's the last step when you've been unable to agree to resolve the case. Short of the arbitration process, Kaiser does agree on certain cases where they feel they may have some exposure to mediation.

Interviewer: Are policyholders at Kaiser required to arbitrate?

Jeff Milman: It is in the Kaiser plan that you sign on to when you become a Kaiser member and it binds not only you, but your family as well. There is an open issue on certain cases whether it binds minors.

Mind you, I am a fan of binding arbitration, whether it be with Kaiser or with a private physician. Even though I'm a trial lawyer and I try cases before juries regularly, I find that a neutral arbitrator, usually a retired judge, don't get blinded by the white coat as I refer to it. So, they hear a number of these cases. They generally make the right calls. You may not get a whacked out verdict such as a defense verdict when it's clearly a case that should result in compensation. But by the same token, you really don't get a whacked out verdict where millions of dollars are rewarded by an angry jury.

Interviewer: What's the time differences between a typical arbitration at Kaiser and say a medical malpractice claim against some other company that would go through the courts?

Jeff Milman: Well, generally they're about the same. In courts, it used to be five years to get a case to trial. Now, California statewide has gotten involved with a program called fast track and generally when you file a lawsuit, for example, in Orange County, California, or Los Angeles, your case is going to have to work its way through the court system within 12 to 18 months. Kaiser, now that the Engalla case has pushed the envelope for them, is aggressive and you can get your case arbitrated within a few months to 18 months as well.

I might tell you that with arbitration, it's a little more relaxed, and chances are you're going to spend less time than you would with a jury trial because with juries, there are a lot of rules of evidence. There's certain things the jury can and can't see. The judge is deciding issues that may or may not be shown to a jury and what can be told to them. Generally, that's a little more relaxed when you're dealing with a retired judge who's just deciding the arbitration.

Interviewer: What would a policyholder have to pay up front to have a claim arbitrated?

Jeff Milman: Generally they're going to need to get their records and that may cost them some money. As I said, sometimes Kaiser will waive the cost. Or if you send them to an outside physician, they'll waive that as well. But above and beyond the cost of the records, most lawyers, unless it's a slam-bam case that can be evaluated right up front – for example, they were supposed to take out my left kidney and they took out the right by mistake – will generally want an expert to review the case. So, I generally ask the clients to front the initial cost of an expert review, which can be anywhere between a few hundred dollars up to a couple thousand. Once I'm assured that there is a good case, then fee agreements are executed.

Generally, the rest of the case is on contingency basis whereby the attorney will front all the costs in an attempt to secure a verdict or a resolution for the client and then get their costs back at the end of the case.

Interviewer: Do you have any other tips or advice that you can give that would be consumer-oriented?

Jeff Milman: Yes, California happens to have a shortened statute of limitations. A regular case, like an automobile accident, is a two-year statute. Thanks to Micra, a specific law, medical malpractice is all by itself, which means that you must file suit within one year of the date you knew, or with suspicion should have known, of potential negligence and injury. So don't dilly-dally. If you feel you've been negligently treated and it's resulted in damage, you need to get your records and you need to talk to a good lawyer to evaluate your case. This way you won't be time-barred.