Kantor & Kantor Files Complaint Against Kaiser for Breach of Contract in a Case Involving a Patient with Liposarcoma Whose Doctor told her She Might Die on the Operating Table

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Kantor & Kantor, LLP filed a complaint against Kaiser Foundation Health Plan, Inc. in the Superior Court for the State of California, County of Los Angeles alleging Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, and violation of California Civil Code Section 3428.

Danielle Saltzman is a young mother and wife. Ms. Saltzman was in good health until July 2020 when she began experiencing weight gain, abdominal distention, night sweats, loss of appetite, occasional low-grade fever, and fatigue.

After a series of bloodwork and imaging tests, Ms. Saltzman was diagnosed with liposarcoma. Liposarcoma is a rare type of cancer that develops in a person’s fatty tissue and can grow anywhere in the body. A liposarcoma is a malignant tumor.

Ms. Saltzman immediately met with an oncologic surgeon at Kaiser. The oncologic surgeon explained that because liposarcoma is a rare type of cancer and that oncologic surgeons at Kaiser perform very few liposarcoma surgeries every year. He referred Ms. Saltzman to the complex cancer team at Kaiser.

Ms. Saltzman diligently began researching her condition and treatment options.

She promptly emailed her oncologic surgeon and requested a referral to get a second opinion from a non-plan provider at UCLA. Ms. Saltzman’s email to her Kaiser oncologic surgeon stated, “Given the rarity and specificity of my condition, I am formally requesting a second opinion authorization to see Dr. Eilber at UCLA…he is a world-renowned doctor who specializes in my exact condition.”

Ms. Saltzman sent a similar email to her primary care physician at Kaiser. In subsequent emails to her doctors, Ms. Saltzman explained UCLA was a high-volume surgical center with a sarcoma-specific program. Kaiser denied her request to get a second opinion from Dr. Eilber.

Ms. Saltzman had no viable option other than to obtain a second opinion outside of Kaiser based on two facts: (1) the rarity and complexity of her condition; and (2) Ms. Saltzman sought specialized treatment at a high-volume surgical center where there was an interdisciplinary medical team with substantial experience treating her medical condition. This was effectively unavailable at Kaiser.

On September 3, 2020, Ms. Saltzman was seen by Dr. Eilber at UCLA for a second opinion and consultation. Dr. Eilber recommended surgical resection of the liposarcoma due to the size of the tumor and explained targeted treatment options that might be needed post-surgery. Dr. Eilber explained that doctors and surgeons from multiple disciplines who are all members of the sarcoma program at UCLA would participate in the planning and execution of her surgery as well as her post-operative care and follow-up.

Ms. Saltzman paid out-of-pocket for her consultation.

On September 11, 2020, Ms. Saltzman met with a surgeon in Kaiser’s oncologic and endocrine surgery team. The doctor said that he did “a fair amount” of sarcoma surgeries annually but pointed out that he had never performed a surgery on a liposarcoma as large as Ms. Saltzman’s. The doctor recommended that Ms. Saltzman proceed with surgery but warned her it would be “extremely challenging” and life-threatening.

He explained that there was a risk that Ms. Saltzman might “die on the table during surgery, from uncontrollable bleeding, for example, or after surgery from complications that may ensue.” Ms. Saltzman was also told that if she recovered from the surgery, it was very likely the tumor would recur or persist.

Given Ms. Saltzman’s research, consultations, and her interaction with Kaiser’s surgeon, it became clear to her that he was not qualified to perform the surgery and Kaiser did not have a suitable high-volume surgical center for her treatment.

Dr. Eilber, on the other hand, possessed the experience, expertise, and appropriate training to perform Ms. Saltzman’s surgery, and, equally important, the UCLA Health Sarcoma Program is part of the UCLA Jonsson Comprehensive Cancer Center and was a high-volume surgical center, ensuring Ms. Saltzman the best chance at survival, recovery, and opportunity for post-operative care in a way that Kaiser was not equipped to provide[DO1].

On October 14, 2020, Ms. Saltzman underwent radical resection of massive (75 cm) right retroperitoneal/abdominal sarcoma. The surgery was performed at UCLA by Dr. Eilber. In addition to the resection, Dr. Eilber also performed a complete right nephrectomy, resection of right pelvic/iliac sarcoma (12 cm), and resection of mesenteric sarcoma (11 cm).

Ms. Saltzman’s surgery at UCLA was successful and she has recovered without significant complications[DO2]. As a result of Kaiser’s denial, Ms. Saltzman paid out-of-pocket for her surgery and hospital stay at UCLA.

Despite repeated grievances, appeals and complaints to both Kaiser and the California Department of Managed Healthcare (“DMHC”), Ms. Saltzman continued to receive denial after denial on the grounds that because she elected to receive care out of plan without authorization from a Plan provider she was liable for those costs.

Kaiser and the DMHC failed to investigate or consider Ms. Saltzman’s objection to Kaiser’s surgeon as being unqualified to perform her complicated and high-risk surgery, as well as the fact that Kaiser did not have a high-volume sarcoma center whereas UCLA did.

More astonishingly, Ms. Saltzman and her attorneys at Kantor & Kantor provided substantial information to both Kaiser and the DMHC showing that the requested treatment was medically necessary and in accordance with generally accepted standards of medical care. Kaiser and the DHMC ignored this information, causing Kantor & Kantor to file this complaint in State Court on Ms. Saltzman’s behalf.

“Patients are entitled to have confidence that their doctors are qualified to treat them and that they will not ‘die on the table during surgery’,” said Cari M. Schwartz, partner at Kantor & Kantor. “Health insurers should offer patients peace of mind. Nobody should be forced to proceed with treatment with an unqualified doctor so the insurer can save money by keeping the treatment in their network.” Ms. Schwartz specializes in representing clients who have been denied health benefits.

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