Life and Death Decisions of the Managed Care System

The case of Goodrich vs. Aetna, currently underway in a San Bernardino courtroom, raises perplexing questions about how the managed care industry defends itself against charges that it neglects its patients.

David Goodrich, a 44-year-old deputy district attorney, died of a rare stomach cancer in 1995. Unlike most of us, his widow, Teresa Goodrich, can sue his health insurance carrier, because as a government employee, he did not come under the usual legal exemption from such suits.

I went to hear the opening statements by the plaintiff’s attorney, Michael Bidart of Claremont, and the defense attorney, Hugh H. Helm of Los Angeles. It was what Helm said--and didn’t say--that I found most provocative.

One big behind-the-scenes question in the Goodrich case is whether his life would have been saved if his insurance carrier, Aetna, had paid hundreds of thousands of dollars for experimental surgeries.

Within a few months of the 1992 discovery of his cancer, it had metastasized to his liver, and after that, it was downhill over 2 1/2 years, marked by alleged long delays on treatment decisions by Aetna, and Goodrich’s own decision to go ahead anyway with treatment outside Aetna’s network of doctors.

Bidart did not contend in his statement that a more forthcoming attitude by Aetna would have kept Goodrich alive. He simply told the jury he might not have died as soon and might have had a better quality of life in the meantime. (But he did allege that Aetna’s medical review committees and lawyers dithered for 5 1/2 months over key decisions on treatments before metastasis was confirmed).

In a 90-minute presentation, Helm never brought up the question of the ultimate cost of such cases to Aetna and America’s other managed care companies, many of which are reportedly struggling with their bottom lines.

If they spend millions on hopeless cases, won’t that mean fewer health care dollars will be available to treat patients with curable diseases or on efforts to prevent disease in the first place? Isn’t what the companies really can afford an essential part of the issue?

I asked Walter Zelman, president of the California Assn. of Health Plans, who speaks for the managed care industry, why he thinks such points aren’t being made by the companies.

“You can’t expect them to be out front on this argument,” he said. “If they said they weren’t going to give in terminal cases, they would come under all kinds of attack.

“In any case, these issues over who gets what at the end of life should not be up to insurance companies. This is a societal debate we have to have.”

But it’s the managed care companies in the meantime that are making the key decisions over where to spend health care dollars, and it seems to me they should let juries in on their reasoning.

Some of what Helm did say bothered me. I sought elaboration afterward, and got a little.

Of course, there’s no way of knowing what the jury thought. The trial is expected to continue for eight weeks, and Superior Court Judge Christopher Warner has admonished jurors not to read news accounts of the case.

The defense attorney repeatedly criticized Goodrich for going to outside providers without first getting Aetna’s approval.

“He chose to . . . ignore his obligation to follow the rules,” he declared.

But he did not address the allegations of long delays by Aetna when early approvals were sought.

It seems out of place to blame a man for breaking the rules when following them would mean he missed care that he felt he desperately needed to save his life.

But, of course, Helm may well have been legally correct in contending that care provided outside its managed network need not be paid for by Aetna.

On the question of using the network, Helm contested Bidart’s quoting network doctors as saying that they did not know enough about the kind of cancer Goodrich had to treat him themselves. (In two significant instances, however, Aetna did agree on special treatment outside the network).

The defense attorney said the network doctors could have treated Goodrich’s cancer, but were “inexperienced” with that particular type.

But should anybody faced with a life-threatening cancer be obliged to put themselves in the hands of “inexperienced” doctors?

Another frequent issue with HMOs and managed care that arose in the statements had to do with paperwork.

Bidart said the Aetna booklet did not exclude coverage for experimental surgeries.

Helm said, however, that Aetna had prepared another document, which was “inserted” into the booklet and said experimental surgeries were excluded.

The insert, an Aetna spokesman said later, was necessary to standardize the booklets of 30 separate Aetna plans.

Still, paperwork excuses by insurance companies are a reason many consumers distrust them.

At the end of his statement, Helm urged the jury not to decide the case on passion, emotion or prejudice.

But as I listened to the statements, this case seemed extremely complicated, filled with medical terms unknown to the public, and most every allegation made by Bidart was contradicted by Helm. One could almost have thought the two attorneys were talking about different cases.

Bidart partner Bill Shernoff observed the next day: “Human beings are emotional people. After they see the evidence, if they get upset, the whole purpose of punitive damages is to correct conduct that is harming society. So there’s nothing wrong with a jury using their emotions as well as their intellect.”

If the trial continues in a morass of contradictions, it may be very tempting for the jury to decide on its emotions. I suppose it’s just such a possibility that worries Aetna.

Ken Reich can be contacted with your accounts of true consumer adventure at (213) 237-7060, or by e-mail at [email protected]