After battling their HMO in court for five years, trying to recoup millions of dollars of rehabilitation expenses and other damages, the family of a Maryland student recovering from a 1992 brain injury could end up owing the health maintenance organization money.
A decision by U.S. District Judge Thomas Penfield Jackson shows how difficult it can be to collect damages from a health plan, an issue at the heart of the national debate over patients' rights.
Even though Jackson found that the CapitalCare HMO shirked its responsibility, he said the law shields the HMO from most of the damages sought by the parents of Alistaire Moore. What's more, the HMO is entitled to be reimbursed for its medical costs from money Alistaire gained in separate litigation over the car crash that caused her injury, Jackson ruled last Wednesday.
"This depressing parable of modern American medical care . . . ends, for the moment, in a disposition that pleases no one, including the Court," Jackson wrote.
Alistaire's parents, William and Judith Moore, had alleged that CapitalCare abandoned them during Alistaire's rehabilitation, leaving them to pay a mountain of bills and devote much of their time to Alistaire's care while their family business suffered.
Jackson essentially agreed, saying, "No one at CapitalCare . . . ever undertook to develop and coordinate any rehabilitative care for Alistaire Moore." He faulted the HMO for rejecting claims for home tutoring and the like, which the HMO asserted were not its responsibility.
The Moores had hoped Jackson would spare them additional battles by ordering the HMO to pay for Alistaire's future medical expenses, which are expected to exceed half a million dollars. Instead, Jackson ruled that Alistaire must repay the health plan the more than $200,000 it has already spent on her treatment.
Under its contract, the health plan is entitled to be reimbursed for Alistaire's care out of the $900,0000 to $1 million she received through lawsuits over liability for the accident, Jackson wrote. He was agreeing with a counterclaim the health plan had filed against the Moores.
"They won, but they lost," said Mary M. Glidden, a rehabilitation consultant and expert witness for the Moores.
The decision suggests that Alistaire, rather than the health plan, could be required to bear the financial burden of her ongoing care, at least until she has exhausted the money from the earlier settlements. That money didn't come close to making Alistaire whole, an attorney for the Moores maintained.
CapitalCare argued that the Moores chose to go outside the HMO and arrange Alistaire's care themselves, which their policy allowed them to do under a different set of benefits. "I don't think we ignored Mr. and Mrs. Moore," said Charles J. Steele, a lawyer for the health plan.
The damages the judge rejected included reimbursement for two years at Phillips Exeter Academy, a New Hampshire prep school, which the Moores claimed was important to Alistaire's recovery; thousands of hours the Moores spent attending to their daughter, which they valued at $291,003; and the business profits they claimed to have lost while filling the breach left by the HMO, estimated at almost $1.8 million as of 1996.
The saga began in September 1992, when Alistaire, then 15, was returning to Exeter. Her father was busy at work, so the Moores, partners in an audio-video engineering firm, hired a driver to make the trip.
The driver, Dolores Seiger, recalled in interviews that she left home in the middle of the night, got lost on the way to the Moores' house, had to spend more than an hour helping load the car, and set out with Alistaire before dawn. By the time the car was passing through New York, Seiger had gotten a speeding ticket and had stopped for coffee to help keep herself awake, she said. With Alistaire napping in the passenger seat while lulling music from "The Phantom of the Opera" played, the driver said her eyes closed and the car left the road.
"My heart goes out to the Moores. . . . It haunts me that I was involved in a such a serious thing," Seiger said.
When Alistaire emerged from a coma, the student who had been on track to graduate high school two years early was completely incapacitated, unable to speak.
The Moores brought Alistaire home from the hospital in December 1992 and launched an intensive rehabilitation regimen in which fitness training, karate lessons, and tutoring in physics, math and French supplemented other forms of therapy. The Moores claimed they had the approval of the HMO, which would have had to spend much more money to keep Alistaire hospitalized. But getting the HMO to pay many of the bills became a maddening ordeal, as the Moores tell it.
The judge declared that Alistaire's primary-care physician and a CapitalCare case manager had given at least "tacit approval" to the Moores' home therapy program. Moreover, he said it was "arbitrary and unreasonable" for the HMO to refuse to cover bills for tutoring and the like simply because the people providing the services were not licensed therapists.
The judge did not spell out his ruling's bottom line in dollars and cents, and he said further court proceedings may be needed to sort out the details.
The Moores' attorney, Martin H. Freeman, said the ruling in favor of the HMO's counterclaim "is clearly in error" and "essentially takes the bottom out of the case."
In suing CapitalCare, the Moores have incurred "several hundred thousand dollars" in legal costs, their attorney said. Moreover, although Alistaire has recovered enough to attend Towson University, she has limited potential to support herself, Glidden said.
CAPTION: Alistaire Moore suffered a brain injury in 1992 and underwent a long, costly rehabilitation.