HMO incentives cited in Massachusetts lawsuit

A Massachusetts jury recently decided to award $1 million to the widow and son of a 46-year-old Massachusetts man after finding that the man's doctor had been negligent in failing to diagnose gastric cancer.

Max Borten, MD, attorney for the estate of Kimiyoshi Matsuyama, said that after the lawsuit was filed in June 2000 and records were subpoenaed, he decided to argue that Neil S. Birnbaum, MD, failed to order tests or prescribe medications for Matsuyama's stomach pains during four years of treatment because he was paid bonuses by the HMO to which Matsuyama belonged to keep costs down.

Michael Goldrich, MD, chair of the AMA Council on Ethical and Judicial Affairs, would not comment on the case specifically but said market forces have a potential impact on utilization of health care resources in general.

Although the managed care environment might be better than it was in 1999, Dr. Goldrich said there really hasn't been "reform."

He added that there has been positive movement in the managed care marketplace through government action and advocacy campaigns such as the AMA's fight against gag clauses.

"More freedom has been restored to the system and fewer restrictions remain on a physician's ability to practice inside of systems," he said. "The problem is that individual physicians are still not empowered in the marketplace."

Dr. Goldrich said AMA policies approved in the past several years could be summarized as stating that "physicians, ultimately, have responsibility for the patient before them."

"That really crystallizes the whole idea that, no matter what outside forces the physician has to weigh, the obligation to the individual patient has to run to the top of the physician's various thoughts," the New Jersey otolaryngologist said.

Court records show that a Norfolk County jury took two hours on Aug. 3 to award Matsuyama's widow and son more than $1 million in damages.

Calls to Dr. Birnbaum were directed to Michael Querner, MD, medical director of Dedham Medical Associates, where Dr. Birnbaum practices. Dr. Querner declined to comment.

The incentives under which Dr. Birnbaum was operating were part of his contract with Harvard Pilgrim Health Care, and company spokeswoman Sharon Torgerson noted that, except for having its records subpoenaed, the company was not involved in the suit.

"We were not named; it was not a judgment against us," Torgerson said. "We have relationships with thousands of doctors, and we always encourage appropriate and necessary care."

Court records showed that Matsuyama visited Dr. Birnbaum six times in four years and was repeatedly told to take over-the-counter remedies.

When Matsuyama's cancer was found in May 1999, it had spread to more than 70% of his stomach, and he died in October 1999. At trial, Dr. Birnbaum denied that his care had fallen below standards, records show.