HMSA’s rejection
of claim results
in $41,667 payout

The state insurance commission
says HMSA did not act reasonably
in denying the claim

---

By Helen Altonn
haltonn@starbulletin.com

The Hawaii Medical Service Association must pay $41,667 for attorneys' fees and costs to settle a member's claim for a $2,500 test that HMSA had rejected.

A review panel appointed by state Insurance Commissioner Wayne Metcalf overturned HMSA's decision in February, saying the insurer "did not act reasonably" in denying coverage for a Positron Emission Tomography scan at the Queen's Medical Center for Edwin Jouxson.

Jouxson and his wife, Dr. Arleen Jouxson-Meyers, president of the patient advocacy group Hawaii Coalition for Health, paid $3,500 for the test, done Sept. 5, 2000. The cost to HMSA would have been $2,500, Meyers said.

In a settlement agreement April 9, the couple and HMSA agreed that the insurance carrier pay Jouxson $1,667; attorney Rafael del Castillo, $18,068.32; and attorney Richard S. Miller, $21,931.68.

"What's really ridiculous about the whole thing, it was clear from the beginning they had a duty to cover this test," Meyers said. "To waste this much members' money is outrageous."

HMSA Senior Vice President Cliff Cisco said, "In all of these cases before the physician review committee, they're judged at the time they arrive, and the decision of physicians on the review committee are based on current state of medical science, current literature."

When HMSA denied coverage for Jouxson's PET scan, Cisco said the association's physicians committee decided evidence did not support its use for the purpose requested.

Some doctors disagreed. Dr. Ronald Wong, colon and rectal surgeon, recommended the high-tech procedure to determine if a large polyp in Jouxson's colon was cancerous.

The test, which showed the polyp was negative, was an alternative to high-risk surgery involving up to a week of hospitalization and up to six weeks for recovery, he said.

Dr. Carol Marcus, nationally recognized California nuclear medicine physician consulted by HMSA, said the Jouxson case was "a perfect example" of how the PET test could avoid a major surgical procedure and save patient risks and high surgical costs."

"In medicine, things change all the time as new technology is developed," Cisco said, explaining a procedure that is not considered acceptable medical practice today could be justified with more technology.

He said "more and more procedures" are being approved for the PET scan, "all based on medical literature and medical research."

But HMSA will not pay for drugs or procedures that are not supported by sound medical research, he said.

"We don't like paying legal fees like that," Cisco added. "It's the insurance commissioner's decision, and we will live with that decision. But I can't say that decision will change a decision for the next case the committee looks at.

"Our understanding is, the judgment by the insurance commissioner is on the merits of this case alone, and not a precedent-setting decision."

However, Miller, University of Hawaii professor of law emeritus and consultant to the Coalition for Health, said the decision "resolved a number of critical issues that will enable future claimants to enforce the rights provided by the Patient's Bill of Rights and their member plan agreements against Hawaii's health insurers."

He said the Patient's Bill of Rights requires health plans to consider a member's individual circumstances and the physician's recommendations and rationale in seeking approval of a PET scan or other treatment or procedure.

He also said a plan's internal medical policy manual that could exclude a requested treatment may not be considered if it is not part of the member's plan.