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Enforcement Action Against Kaiser Permanente

Enforcement

1 Second Amended Accusation

98-126, RGR

JOAN W. CAVANAGH (#56708)

Assistant Deputy Director, Office of Enforcement

REBECCA G. RUGGERO (#165581)

Senior Counsel

JAMES NOVELLO (#172964)

Staff Counsel

CALIFORNIA DEPARTMENT OF MANAGED HEALTH CARE

980 9th Street, Suite 500

Sacramento, CA 95814-2725

Telephone: (916) 323-0435

Facsimile: (916) 323-0438

Attorneys for Complainant

BEFORE THE DEPARTMENT OF MANAGED HEALTH CARE OF THE STATE OF CALIFORNIA

THE DIRECTOR OF THE DEPARTMENT OF MANAGED HEALTH CARE

VS

KAISER FOUNDATION HEALTH PLAN, INC. (UTTERBACK)

KAISER FOUNDATION HEALTH PLAN, INC. (SPUNBARG)

KAISER FOUNDATION HEALTH PLAN, INC. (WEST)

FILE NO: 98-126, 00-190

OAH NO: N2000070472

SECOND AMENDED ACCUSATION AND PETITION TO ASSESS

ADMINISTRATIVE PENALTIES AGAINST THE LICENSEE

HEARING DATE: January 8, 2001

HEARING TIME: 9:00 am

HEARING PLACE: 1515 Clay Street,

Room 206, Oakland, California 94612

INTRODUCTION

This case is brought pursuant to the provisions of the Knox-Keene Health Care Service Plan Ac t of 1975, as amended (the "Act")1 based on the failure by Kaiser Foundation Health Plan, Inc. ("Kaiser"), the largest health care service plan in California, to provide three (now deceased) Kaiser enrollees, Margaret Utterback, Wolfgang Spunbarg, and James West with care and services as mandated by the Act.

1 The Act includes Health and Safety Code section 1340, et seq.

Kaiser failed to provide Margaret Utterback with access to care, continuity of care consistent with good professional service, and basic health care services such as emergency care. Kaiser also failed, and continues to fail, to demonstrate that it has the organizational and administrative capacity to provide services to enrollees by maintaining, filing and maintaining medical records such as e-mail messages. Finally, Kaiser failed to promptly and reasonably resolve the family’s grievance. Specifically, Kaiser failed to coordinate Mrs. Utterback’s care after an x-ray indicated that follow up was necessary; failed, and continues to fail, to have a system in place for a medical professional to triage abdominal aortic
aneurysm
2 complaints; failed, and continues to fail, to have an appointment system that prioritizes appointments with physicians; failed to heed Mrs. Utterback’s repeated requests to see her physician once she arrived at a Kaiser clinic sooner than her scheduled appointment; and failed, and continues to fail, to have protocols in place regarding the use of emergency transport from a clinic to the emergency room to ensure patients are transferred timely and in accordance with their medical needs.

Regarding Wolfgang Spunbarg, Kaiser failed to provide him with accessible health care services and continuity of care consistent with good professional service.

Specifically, Kaiser failed to provide Mr. Spunbarg with timely and accessible emergency health care services for treatment of his abdominal aortic aneurysm.

2 An abdominal aortic aneurysm develops when weakness in the wall of the aortic artery causes the vessel to swell. Rupture or threatened rupture of an abdominal aneurysm is a surgical emergency. If the vessel bursts, the patient can bleed to death in a short period of time. The condition normally takes many years to develop.

3 Second Amended Accusation

98-126, RGR

Regarding James West, Kaiser failed to provide him with continuity of care consistent with good professional service. 

Specifically Kaiser failed to share all pertinent information, including ready availability of medical records, relating to the health care of Mr. West. Kaiser’s conduct in its treatment of Mrs. Utterback, Mr. Spunbarg, and Mr. West was in violation of the Act and constitutes cause for discipline by the Director of the Department of Managed Health Care pursuant to Health and Safety Code section 1386.

PARTIES

1. Joan W. Cavanagh ("complainant") is the Assistant Deputy Director, Office of Enforcement of the Department of Managed Health Care. Complainant brings this action solely in her official capacity as Assistant Deputy Director, Office of Enforcement.

2. At all times pertinent to the allegations herein, Kaiser has been a health care service plan as defined by the Act. Kaiser is the holder of health care service plan license no. 933-0055, which was issued on November 4, 1977 by the Commissioner of Corporations of the State of California.3 Kaiser is subject to the regulatory provisions of the Act. Kaiser’s principal corporate office is located at 1800 Harrison Street, 8th Floor, Oakland, California 94612.

3.Until July 1, 2000, health care service plans were licensed by the Department of Corporations and subject to DOC’s regulatory jurisdiction. Effective July 1, 2000, the Department of Managed Health Care succeeded to allduties, powers, responsibilities and jurisdiction of the Department of Corporations regarding the Department of Corporation’s Health Plan Program, health care service plans and the health care service plan business. Health & Safety Code 1341.9. As of 

January 1, 2001, the Department of Managed Care is now known as the Department of Managed Health Care.

JURISDICTION

3. This Second Amended Accusation is brought before the Director of the Department of Managed Health Care (the "Department") under the authority of the following sections of the Health and Safety Code and the rules and regulations promulgated thereunder at title 10, California Code of Regulations (the "Rules").

4. Pursuant to Health and Safety Code section 1341, the Director is vested with the responsibility for administration and enforcement of the provisions of the Act and the rules thereunder. The statutory mission of the Department as set forth in 

Health and Safety Code section 1341(a), is to ensure that health care service plans provide enrollees with access to quality health care services and to protect and promote the interests of enrollees.

5. Health and Safety Code section 1386(a) authorizes the Director to take disciplinary action against a health care service plan, including, but not limited to, the assessment of administrative penalties against the plan, if the Director determines, after appropriate notice and opportunity for a hearing, that the plan has committed any of the acts or omissions which constitute grounds for disciplinary action pursuant to the provisions of the Act.

6. Health and Safety Code section 1386(b)(6) provides that the Director may take disciplinary action against a plan when "[t]he plan has violated or attempted to violate, or conspired to violate, directly or indirectly, or assisted in or abetted a violation or conspiracy to violate any provision of this chapter, any rule or regulation adopted by the director pursuant to this chapter, or any order issued by the director."

7. As set forth below, complainant alleges that Kaiser has violated or continues to violate, Health and Safety Code sections 1367(d), 1367(e)(1), 1367(i),

1368.01(a) and 1368.04(b) and California Code of Regulations, title 10, sections 1300.67,1300.67(g), 1300.67.1, 1300.67.1(a), 1300.67.1(c), 1300.67.1(d), 1300.67.1(e),1300.67.2, 1300.67.2(c), 1300.67.2(d) and 1300.68.

FACTUAL ALLEGATIONS

A. Margaret Utterback

8. On January 26, 1996, Margaret Utterback, a 74-year-old member of Kaiser Foundation Health Plan, Inc. experienced a ruptured abdominal aortic aneurysm ("AAA") at Kaiser Hospital in Hayward after attempting to see a physician for more than eight hours. The rupture occurred an hour after the initial diagnosis. Due to the fact that there was a unreasonable delay in getting Mrs. Utterback transported a mere one and one half miles from a Kaiser clinic to the Kaiser emergency room, the subsequent eight hour surgery which included transfusion of more than 20 units of blood proved futile. Mrs. Utterback died approximately 36 hours later in the critical care unit ("CCU").

9. On January 26, 1996, Mrs. Utterback woke up suffering from right abdominal pain radiating to her back. The pain persisted throughout the entire day as she attempted to be seen by her Kaiser physician. She made continual efforts to obtain an appointment with her primary care physician. In doing so, Mrs. Utterback faithfully utilized the Hayward phone system and waited more than four hours to hear back from her physician, who answered her request to be seen with a prescription for a narcotic pain medication. After Mrs. Utterback refused the pain medication and insisted on being 
examined, her daughter drove her to Kaiser’s Point Eden medical facility in Hayward at least one hour early for her appointment, where Mrs. Utterback sat in the waiting room, moaning in obvious physical distress. Even though the receptionist was asked several times by her daughter to try to work Mrs. Utterback in earlier due to her mother’s severe pain, Kaiser nevertheless failed to have her examined by a doctor or nurse until approximately 4:30 p.m., 15 minutes after her scheduled appointment.

10. Her condition was diagnosed promptly once she was seen. The aneurysm was large, approximately 10 cm in size, and could easily be detected by touch by a physician during a physical exam. Even after Mrs. Utterback was determined tobe suffering from an dissecting abdominal aortic aneurysm ("AAA"), Kaiser failed to take prompt action to carry out the emergency surgery she needed. Instead, a non-emergency ambulance was ordered to take Mrs. Utterback from Point 

Eden Clinic to the Kaiser Hospital in Hayward at the height of rush-hour traffic. Moments after arriving at the Kaiser Hospital emergency room in Hayward, Mrs. Utterback’s blood pressure "crashed", which indicated that her aneurysm had ruptured. By the time Mrs. Utterback was finally taken to emergency surgery minutes later, it was too late to perform surgery that would ultimately save her life.

11. The aneurysm burst at approximately 5:45 p.m. After surgery to attempt to repair the ruptured aneurysm, Mrs. Utterback was sent to CCU and never regained full consciousness before dying 36 hours later.

12. Mrs. Utterback’s medical records indicate that there was an abnormality in her abdominal aorta as much as 10 years earlier that was never followed up or investigated.

B. Wolfgang Spunbarg

13. Wolfgang Spunbarg, a 72-year old Kaiser enrollee, was taken to the Kaiser Woodland Hills Emergency Department by his wife, Edith Spunbarg, on April 25, 2000. Mr. Spunbarg told his wife that he was experiencing severe pain in his testicles and abdomen.

14. Upon arrival, Mr. Spunbarg walked into the emergency department while his wife parked the car. When Mrs. Spunbarg walked in the Kaiser Woodland Hills Emergency Department, she saw her husband sitting in the waiting area with other people. According to medical records he checked in at 11:27 p.m. on April 25, 2000. However, he did not receive an initial exam until 11:45 p.m.

15. Mrs. Spunbarg told the receptionist in the emergency department that her husband had problems with his heart, was taking medication, and should be seen immediately. Mrs. Spunbarg was told by the receptionist that the emergency department was too busy and Mr. Spunbarg would have to wait.

16. Mr. Spunbarg remained in the waiting area of the emergency department for a minimum of eighteen minutes before he was seen by a health care professional. During that time he was in severe pain and was making a moaning sound audible to other people in the waiting area.

17. Dr. Mona Balogh was summoned by Mrs. Spunbarg while Dr. Balogh was talking to another patient. Dr. Balogh told a nurse to assist Mr. Spunbarg. When the nurse arrived she argued with Mrs. Spunbarg for a period of time before checking 

Mr. Spunbarg’s vital signs for the first time at 11:45 p.m.

18. Thereafter, at approximately 11:50 p.m., Mr. Spunbarg became unconscious and collapsed in the emergency department. Emergency protocols were used in an attempt to save Mr. Spunbarg’s life. However, he never regained 

consciousness and Mr. Spunbarg was pronounced dead at approximately 1:21 a.m. on April 26, 2000. Mr. Spunbarg’s cause of death was listed as Abdominal Aortic Aneurysm.

C. James West

19. James West, a 62-year-old man, was diagnosed with a 6 cm abdominal aortic aneurysm on June 5, 1999.20. Mr. West had a Kaiser primary care physician, Dr. Syed Nauqui, who referred him to Kaiser vascular surgeon Charles Reider for treatment of the AAA.

21. Mr. West met with Dr. Charles Reider on June 15, 1999 to discuss the AAA.

22. On June 21, 1999, while undergoing a catropil renal scan at Kaiser Walnut Creek Hospital, Mr. West lost consciousness.

23. Mr. West was taken to the emergency department and admitted to Kaiser Walnut Creek Hospital.

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98-126, RGR

24. On June 22, 1999, James West was discharged from the Kaiser Walnut Creek Hospital without any further diagnostic testing of his AAA.

25. On June 23, 1999, Mr. West had an aortography and iliac angiogram as an outpatient at Kaiser Walnut Creek by Dr. Ho.

26. On June 25, 1999, Mr. West arrived at a scheduled appointment with his primary care physician, Dr. Syed Nauqui. Dr. Nauqui did not have James West’s medical chart and had no knowledge of Mr. West’s hospitalization on June 21 and June 22.

27. On June 25, 1999, Mr. West also had an appointment with Dr. Reider. Dr. Reider had no knowledge or information regarding James West’s hospitalization on June 21.

28. On June 27, 1999, Mrs. West took her husband, Mr. West, to the Kaiser Walnut Creek Hospital emergency room due to severe abdominal pain.

29. A CT scan was performed on Mr. West at the Kaiser Walnut Creek Hospital by Dr. Victoria Flavell. The test showed the aneurysm was now 6.8 cm.

30. On June 28, 1999, Mrs. West saw Dr. Charles Reider in a hallway of the Kaiser Walnut Creek Hospital. Dr. Reider was the on-call vascular surgeon for the Kaiser Walnut Creek Hospital on June 28, 1999. Dr. Reider told Mrs. West that he had not been informed that his patient, Mr. West, had been hospitalized on June 27, 1999.

31. Dr. Charles Reider told Mrs. West that he was currently on his way to perform surgery on another patient, but would check on Mr. West when he was finished.

32. While Dr. Charles Reider was in surgery with the other patient, Mr. West was found pulseless and unresponsive in his bed. The diagnosis was a ruptured AAA.

10 Second Amended Accusation

98-126, RGR

33. Mr. West was rushed to the operating room where Dr. Charles Reider performed an attempt at abdominal aortic aneurysm repair.

34. Mr. West never regained consciousness and died on June 29, 1999.

35. Dr. Syed Nauqui, Mr. West’s primary care physician, was not notified of James West’s hospitalization on June 27, 1999 until after he expired.

FIRST CAUSE FOR DISCIPLINE (RESPONDENT HAS VIOLATED ITS DUTY TO PROVIDE ACCESS TO CARE)

36. Health and Safety Code section 1367(e)(1) states that "All services shall be readily available at reasonable times to all enrollees. To the extent feasible, the plan shall make all services readily accessible to all enrollees."4

37. Rule 1300.67.2 sets forth the standard for health plans to meet regarding access to care.5

4 Also, Health and Safety Code section 1367(f) requires a plan to employ and utilize allied health manpower for the furnishing of services to the extent permitted by law and consistent with good medical practice.

5 Rule 1300.67.2 states:

Within each service area of a plan, basic health care services and specialized health care services shall be readily available and accessible to each of the plan's enrollees;

(c) Emergency health care services shall be available and accessible within the service area twenty-four hours a day, seven days a week;

(d) The ratio of enrollees to staff, including health professionals, administrative and other supporting staff, directly or through referrals, shall be such as to reasonably assure that all services offered by the plan will be accessible to enrollees on an appropriate basis without delays detrimental to the health of the enrollees. There shall be at least one full-time equivalent physician to each one thousand two hundred

(1,200) enrollees and there shall be approximately one full-time equivalent primary care physician for each two thousand (2,000) enrollees, or an alternative mechanism shall be provided by the plan to demonstrate an adequate ratio of physicians to enrollees.

Utterback

38. Kaiser failed and/or continues to fail to provide enrollees with access to care in the following respects (each act forms an independent basis for assessment of a penalty):

(a) The Kaiser telephone call center does not have a triage system for AAA thereby failing to ensure that all enrollees are receiving all services in a readily accessible manner;

(b) Enrollees who telephone the call center are not allowed to be transferred to their physicians or to the physicians’ nurses, thereby not providing services to all enrollees in a readily accessible manner;

(c) Every time an enrollee telephones, the Kaiser call system is such that the enrollee reaches a different medical assistant  ("M.A.") each time and there is no way to determine what efforts were made, if any, by the prior M.A.s to provide the enrollee with services, such as appointments and access to advice nurses thereby failing to assure that all enrollees are receiving all services in a readily accessible manner;

(d) The Kaiser appointment system does not have the means to prioritize same day appointments thereby failing to ensurethat all enrollees are receiving all services in a readily accessible manner;

(e) There are no guidelines for how e-mail messages are prioritized or processed once they have been sent to the clinic;

(f) When an enrollee arrives at a clinic earlier and announces to the receptionist and/or M.A. that he/she is in pain and would like to be put in a room, lay down and/or be seen earlier, there is no Kaiser system in place to ensure that the enrollee is triaged by an R.N. and/or a physician thereby failing to ensure that all enrollees are receiving all services in a readily accessible manner;

(g) No medical professional spoke to and/or had any contact with Mrs. Utterback for approximately eight hours after her first attempt to get assistance thereby failing to ensure that all services to Mrs. Utterback were available in a readily accessible manner;

(h) Mrs. Utterback’s complaints and desires were communicated only to M.A.s who are not medically trained to perform medical triage on a patient thereby failing to ensure that all services provided to Mrs. Utterback were available in a readily accessible manner; and,

(i) Kaiser failed to maintain the appropriate enrollee to staff ratios at Medical Station 6 on or about January 26, 1996.

Spunbarg

39. In the case of Mr. Spunbarg, Kaiser failed, and continues to fail, to provide available and accessible emergency health care services at the Kaiser Woodland Hills Emergency Department (each act forms an independent basis for assessment of a penalty):

(a) Kaiser Woodland Hills Emergency Department was closed due to saturation6 when Mr. Spunbarg arrived for services;

(b) Kaiser Woodland Hills Emergency Department closes due to saturation on an average of two days per week;

(c) Enrollees who arrive at the Kaiser Woodland Hills Emergency Department are not advised by Kaiser when the emergency department is closed due to saturation; and,

(d) Kaiser Woodland Hills utilizes a receptionist, untrained in health care, to make an initial assessment of a newly arriving enrollee that otherwise should be seen by a health care professional.

SECOND CAUSE FOR DISCIPLINE

(RESPONDENT HAS VIOLATED ITS DUTY TO PROVIDE CONTINUITY OF CARE)

40. Health and Safety Code section 1367(d) requires that the plan furnish services in a manner providing continuity of care and ready referral of patients to other providers at times as may be appropriate consistent with good professional practice.

41. Rule 1300.67.1 sets forth the standard for health plans to meet with respect to continuity of care.7

6 A term meaning all beds are full and no ambulance transport patients will be accepted.

7 Rule 1300.67.1 states:

Within each service area of a plan, basic health care services shall be provided in a manner which provides continuity of care, including but not limited to:

(a) The availability of primary care physicians, who will be responsible for coordinating the provision of health care services to each enrollee;

(c) The maintenance and ready availability of medical records, with sharing within the plan of all pertinent information relating to the health care of each enrollee;

(d) The maintenance of staff, including health professionals, administrative and other supporting staff, directly or through an adequate referral system, sufficient to assure that health care services will be provided on a timely and appropriate basis to enrollees.

14 Second Amended Accusation

98-126, RGR

Utterback

42. Kaiser failed and/or continues to fail to provide enrollees with continuity of care in the following respects (each act forms an independent basis for assessment of a penalty):

(a) The Kaiser call center does not have a triage system for AAA thereby failing to ensure that all enrollees are receiving all services in a manner providing continuity of care with ready referral to other providers which are appropriate and consistent with good professional practice;

(b) No one, based on Mrs. Utterback’s symptoms, advised her to go to the emergency room thereby failing to ensure that Kaiser furnished services in a manner providing continuity of care with ready referral to other providers which would have been appropriate and consistent with good professional practice;

(c) Expecting M.A.s (as opposed to R.N.s or physicians) to ask enrollees appropriate questions in order to send medically sound e-mail messages to physicians fails to ensure that Kaiser furnishes services in a manner providing continuity of care;

(d) No medical professional spoke to and/or had any contact with Mrs. Utterback for approximately eight hours after her first attempt to get assistance thereby failing to ensure that Kaiser furnished services in a manner providing continuity of care with ready referral to other providers which would have been appropriate and consistent with good professional practice;

(e) There is no documentation that Mrs. Utterback was offered an appointment with another physician. Even if she had been, it would have been in violation of Kaiser’s own Appointment Guidelines, thereby failing to ensure that Kaiser furnished services in a manner providing continuity of care with ready referral to other providers which would have been appropriate and consistent with good professional practice; and,

(f) On January 26, 1996, Mrs. Utterback’s complaints and desires were communicated only to M.A.s who are not medically trained to perform medical triage on a patient thereby failing to ensure that Kaiser furnished services in a manner providing continuity of care with ready referral to other providers, such as those available in the emergency department, which would have been appropriate and consistent with good professional practice.

43. Kaiser fails to maintain and have medical records readily available, with sharing within the Kaiser system of all pertinent information relating to the health care of each enrollee in at least the following four ways:

(a) The advice nurses have no medical charts available to them at the Call Center so that adequate information cannot either be evaluated by the R.N. or communicated to the physician;

(b) When physicians receive e-mail messages from the Call Center or the enrollee is able to secure a same day appointment, the medical chart is not available on the premises for the physician to review prior to rendering medical care or a medical opinion to the enrollee; and

(c) The e-mail that described Mrs. Utterback’s symptoms, which indicated that a prescription for a narcotic was prescribed when Mrs. Utterback was specifically seeking access to care by way of an appointment, is omitted from the medical chart.

44. Kaiser failed to monitor the follow up of Mrs. Utterback’s health care documentation.

(a) When Mrs. Utterback’s medical records revealed abnormalities in her chest x-rays, her primary care physicians failed to follow up on the radiologists’ comments thereby failing to ensure that Kaiser furnished services in a manner providing continuity of care with ready referral to other providers which would have been appropriate and consistent with good professional practice. Expecting M.A.s (as 
opposed to R.N.s or physicians) to ask enrollees appropriate questions in order to send medically sound e-mail messages to physicians fails to ensure that Kaiser furnishes services in a manner providing continuity of care.

Spunbarg

45. Rule 1300.67.1(d) provides that within each service area of a plan, basic health care services8 shall be provided in a manner which provides continuity of care, including but not limited to the following subdivision: "(d) The maintenance of staff, including health professionals, administrative and other supporting staff, directly or through an adequate referral system, sufficient to assure that health care services will be provided on a timely and appropriate basis to enrollees."

46. Kaiser failed to maintain sufficient health care professional staff to assure that health care services were being provided on a timely and appropriate basis and consistent with good professional practice to Mr. Spunbarg (each act forms an independent basis for assessment of a penalty):

(a) Kaiser health care professionals failed to assess the condition of Mr. Spunbarg for 18 minutes after he arrived at the emergency department because of insufficient staffing at the Kaiser Woodland Hills facility;

(b) Kaiser Woodland Hills Emergency Department was closed due to saturation at the time Mr. Spunbarg arrived;

(c) Kaiser Woodland Hills Emergency Department closes due to saturation two days per week on average; and,

8 "Basic Health Care Services" is defined in Health and Safety Code section 1345(b) and includes emergency health care services in 1345(b)(6).

(d) Kaiser Woodland Hills Emergency Department requires a receptionist to triage patients when they first arrive.

West

47. Rule 1300.67.1(c) and (e) provides for,

(c) The maintenance and ready availability of medical records, with sharing within the plan of all pertinent information relating to the health care of each enrollee;

(e) An adequate system of documentation of referrals to physicians or other health professionals. The monitoring of the follow up on enrollees’ health care documentation shall be the responsibility of the health care service plan and associated health professionals.

48. Kaiser failed to maintain and have readily available medical records, with sharing within the plan of all pertinent information relating to the health care of Mr.

West.

(a) Kaiser failed to share information of Mr. West’s hospitalization on June 21 and June 22, 1999 with his primary care physician, Dr. Syed Nauqui.

(b) Kaiser failed to share information of Mr. West’s hospitalization on June 21 and June 22, 1999 with his vascular surgeon, Dr. Charles Reider.

(c) Kaiser failed to make Mr. West’s medical records available for his appointment on June 25, 1999 with his primary care physician, Dr. Syed Nauqui.

(d) Kaiser failed to share information on James West’s hospitalization on June 27, 1999 with his primary care physician, Dr. Syed Nauqui.

(e) Kaiser failed to share information of Mr. West’s hospitalization on June 27, 1999 with his vascular surgeon, Dr. Charles Reider.

49. Kaiser fails to have an adequate system in place for the maintenance and ready availability of medical records with sharing within the plan of all pertinent information relating to the health care of each enrollee.

(a) Kaiser fails to have a system in place in which pertinent information of enrollees with "high risk" medical condition can be shared within the plan on a timely basis.

THIRD CAUSE FOR DISCIPLINE

(RESPONDENT FAILED TO PROVIDE EMERGENCY CARE SERVICES)

50. Health and Safety Code section 1367(i) states as follows, "Each health care service plan contract shall provide to subscribers and enrollees all of the basic health care services included in subdivision (b) of Section 1345…."

51. Rule 1300.67 states: Scope of Basic Health Care Services

The basic health care services required to be provided by a health care service plan to its enrollees shall include, where medically necessary…:

(g) Emergency health care services which shall be available and accessible to enrollees on a twenty-four hour a day, seven days a week, basis within the health care service plan area. Emergency health care services shall include 

ambulance services for the area served by the plan to transport the enrollee to the nearest twenty-four hour emergency facility with physician coverage, designated by the Health Care Service Plan.

52. Kaiser failed and/or continues to fail to provide enrollees with emergency care in the following respects (each act forms an independent basis for assessment of a penalty):

(a) No protocols or guidelines exist for Kaiser Hayward clinics with regard to when 911 should be activated as opposed to an in-house call to a "hub" to contact "emergency" transport. The lack of guidelines fails to ensure that services are available and accessible to enrollees twenty-four hours a day, seven days a week, within the health care service plan area;

(b) Not having protocols in place from 1996 through the present, regarding the use of the most emergent transportation available to transport patients when needed to the Hayward Emergency Department, fails to ensure that services are available and accessible to enrollees twenty-hour hours a day, seven days a week, within the health care service plan area;

and,

(c) In the case of Mrs. Utterback, who was suffering from a dissecting AAA, Kaiser failed to provide emergency health care services, including the appropriate ambulance services for the area served by the plan, to transport her to the nearest twenty-four hour emergency facility with physician coverage in a timely manner. This failure to utilize the proper emergencytransport failed to ensure that all health care services were available to Mrs. Utterback in a readily accessible manner as required by the Act.

FOURTH CAUSE FOR DISCIPLINE

(RESPONDENT FAILED TO PROMPTLY AND REASONABLY RESOLVE THE FAMILY’S GRIEVANCE)

53. Health and Safety Code section 1368.01 (for years 1996-1999)9 stated:

(a) The grievance system shall require the plan to resolve grievances within 30 days whenever possible and shall require the plan to provide enrollees and subscribers with a written statement on the disposition or pending status of the grievance within 30 days of the plan’s receipt of the grievance.

54. Rule 1300.68. Grievance System A plan grievance system established pursuant to the requirement of Section 1368 of the Act shall include at least the following features:

(a) The system shall be established, pursuant to written procedures, for the receipt, handling and disposition of complaints. 

An officer of the plan shall be designated as having primary responsibility for the maintenance of such procedures and for the review of their operations and for the utilization of any emergent patterns of grievances in the formulation of policy changes and procedural improvements in the plan's administration.

9 The current version of Health and Safety Code section 1368.01(a) is as follows:

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(e) Complaint forms and a copy of the grievance procedure shall be readily available at each facility of the plan and the plan shall provide them to subscribers and enrollees promptly upon receipt of a request.

(g) A grievance system shall provide (1) for the acknowledgment of the receipt of a complaint and notice to the complainant of who may be contacted with respect to the complaint within 20 days, and (2) for notice and a written statement to the complainant of the disposition or pending status of the complaint within 30 days of the plan's receipt of the complaint. Where the plan is unable to distinguish between complaints and inquiries, they shall be considered complaints.

(h) A grievance system shall provide for a prompt review of complaints by the management or supervisory staff responsible for the services or operations which are the subject of the complaint.

55. Kaiser failed to provide Mrs. Utterback with an adequate grievance system in the following manner (each act forms an independent basis for assessment of a penalty):

(a) The grievance system shall require the plan to resolve grievances within 30 days.

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(a) The complaint was not resolved in 30 days. In fact, to this date, the complaint continues to be unresolved;

(b) The Kaiser grievance system was not established, pursuant to written procedures, for the receipt, handling and disposition of complaints. In 1996, there was no officer of Kaiser that was designated as having primary responsibility for the maintenance of such procedures and for the review of their operations and for the utilization of any emergent patterns of grievances in the formulation of policy changes and procedural improvements in Kaiser’s administration;

(c) Complaint forms and a copy of a grievance procedure were not made available to the Utterback family. Instead, the 

Utterback family had to create their own letter explaining its complaint;

(d) In the Utterback situation, the grievance system failed to provide (1) the acknowledgment of the receipt of a complaint and notice to the family of whom may be contacted with respect to the complaint within 20 days, and failed to (2) give notice and a written statement to the Utterback family of the disposition or pending status of the complaint within 30 days of 

Kaiser's receipt of the grievance; and,

(e) Kaiser’s grievance system failed to provide for a prompt review of the Utterback family’s complaints by the management or supervisory staff responsible for the services or operations which are the subject of the complaint.

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PRAYER

WHEREFORE, complainant prays that a hearing be held on the matters alleged herein and that following the hearing a decision be rendered by the Director of the Department of Managed Health Care assessing an administrative penalty against Kaiser Foundation Health Care, Inc. of ($1,100,000.00) One Million One Hundred Thousand dollars and ordering such other and further relief as the Director deems proper.

Dated: February 9, 2001

______________________________________

Rebecca G. Ruggero

Senior Counsel

Attorney for Department of Managed Health Care


Enforcement

1 Second Amended Accusation

December 27, 2000

Ellen Leonard, Senior Counsel

Kaiser Foundation Health Plan, Inc.

One Kaiser Plaza

Oakland, CA 94612

RE: Assessment of Administrative Penalty Against Kaiser Foundation Health Plan, Inc.

Dear Ms. Leonard:

The Department of Managed Health Care (the "Department") has concluded an investigation in the matter of Kaiser Foundation Health Plan, Inc. ("KFHP") and the inadvertent release of KFHP member’s confidential medical information by KP Online in August 2000. Kaiser Permanente Online is a website through which KFHP members can access health information, participate in discussion groups, make appointments and request advice from a nurse or ask questions of a pharmacist. On August 2, 2000, as a result of an error in a program created to send previously undelivered e-mail, e-mail messages intended for over 450 California KFHP members were mistakenly sent through the Kaiser Permanente Online 

service to the e-mail addresses of 17 other KFHP members. KFHP promptly reported the problem to the Department and contacted all of the involved members. The 17 members who were sent the e-mail messages reported that either they never received the messages or that they had deleted them.

The Department’s investigation has found that the error was inadvertent, that KFHP acted promptly to mitigate any harm, 

and has implemented corrective measures to reduce the likelihood of such an event happening again. Nevertheless, the Department has concluded that a violation of the Knox-Keene Act did occur.

Therefore, the Department finds that KFHP has violated Health and Safety Code Section 1386 (b)(15) and imposes an Administrative Penalty in the amount of

State of California

Gray Davis, Governor

Business, Transportation and Housing Agency

980 Ninth Street

Suite 500

Sacramento, CA 95814

916-324-3669

jnovello @ dmhc.ca.gov e-mail

Ellen Leonard

Kaiser Foundation Health Plan, Inc.

December 22, 2000

Page 2

$25,000.00. The amount of the fine is less than that which the Department would have otherwise sought had KFHP not been forthcoming about the incident, and had it not taken steps to remedy the problems resulting from the error. It is the Department’s understanding that KFHP has concluded that it is in their best interest, and the interest of its members, to resolve the matter at this time by paying the fine.


Thank you for cooperation and speedy resolution of this matter.

Sincerely,

James Novello

Staff Counsel

Department of Managed Health Care


Enforcement


WILLIAM KENEFICK (#59588)

Acting Commissioner of Corporations

G. LEWIS CHARTRAND, JR. (#124389)

Supervising Corporations Counsel

REBECCA G. RUGGERO (#165581)

Corporations Counsel

JOAN W. CAVANAGH (#56708)

Senior Corporations Counsel

CALIFORNIA DEPARTMENT OF CORPORATIONS

980 9th Street, Suite 500

Sacramento, CA 95814-2725

Telephone: (916) 323-0435

Facsimile: (916) 323-0438

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CORPORATIONS OF THE STATE OF CALIFORNIA

In the Matter of the Accusation and Notice of Intent to Assess Administrative Penalties Against KAISER FOUNDATION HEALTH PLAN, INC. (UTTERBACK).

Respondent

FILE NO: 933-0055

OAH NO:

ACCUSATION AND PETITION TO

ASSESS ADMINISTRATIVE PENALTIES

AGAINST THE LICENSEE

PRE-HEARING CONFERENCE

DATE:

TIME:

DEPT:

HEARING DATE:

TIME:

DEPT:

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98-126, RGR

TABLE OF CONTENTS

In The Matter of the Accusation and Notice of Intent to

Access Administrative Penalties Against

Kaiser Foundation Health Plan, Inc. (Utterback)

I. Introduction ................................................1

II. Jurisdiction ................................................2

III. Statement Of Facts ..........................................3

A. Margaret Utterback ......................................3

B. Abdominal Aortic Aneurysms...............................4

C. The Morning Of January 26, 1996 And Mrs. Utterback’s

Calls To Kaiser .........................................5

D. The First Long Wait .....................................8

E. Mrs. Utterback’s Contact With Medical Professionals

Prior To Arriving At The Clinic And The Failure To

Follow Appointment Guidelines...........................10

F. The Long Wait At the Kaiser Clinic ......................10

G. The Rapid Diagnosis ....................................11

H. The Effect Of Kaiser’s Failure To Instigate Standard

AAA Protocols ..........................................13

I. The Rupture And The Emergency Surgery ...................14

J. Mrs. Utterback’s Last Hours Of Life .....................14

K. The Family’s Futile Attempts To Get Answers From

Kaiser Through Its Grievance Process ....................15

IV. Kaiser’s Violations Of The Knox-Keene Health Care Service

Plan Act And The California Code Of Regulations .............20

A. Kaiser’s Phone System, E-Mail System, Appointment

Guidelines, Understaffing And Lack Of Documentation

Created Barriers To Access To Care .....................20

i. Controlling Authority.............................20

a. Access To Care................................20

b. Continuity Of Care ............................21

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ii. Kaiser’s Phone And E-Mail System .................21

iii. Kaiser’s Appointment System .......................23

iv. Kaiser’s Understaffing ............................24

v. Kaiser’s Inadequate Documentation .................25

B. Kaiser Failed to Provide Basic Health Care Services

Mandated by Knox-Keene.................................25

i. Controlling Authority For Preventive Care .........25

ii. Kaiser’s System For Providing Preventive Care......27

iii. Controlling Authority For Emergency Care ..........28

iv. Kaiser’s System For Emergency Care ................30

C. Kaiser Failed To Demonstrate That It Has

Organizational And Administrative Capacity To

Provide Services To Enrollees, Including The

Maintenance Of Medical Records .........................31

D. Kaiser Failed To Promptly And Reasonably Resolve The

Family’s Grievance ....................................33

V. Disregard For The Requirements Of The Act Make It

Necessary To Assess Administrative Penalties ................37

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TABLE OF AUTHORITIES

In The Matter of the Accusation and Notice of Intent to

Access Administrative Penalties Against

Kaiser Foundation Health Plan, Inc. (Utterback)

Statutes

Health & Safety Code section 1345(b)(5)....................3, 25, 38

Health & Safety Code section 1345(b)(6)....................3, 28, 38

Health & Safety Code section 1367(e)(1)....................3, 20, 38

Health & Safety Code section 1367(d).......................3, 21, 38

Health & Safety Code section 1367(f).......................3, 20, 38

Health & Safety Code section 1367(g).......................3, 31, 38

Health & Safety Code section 1367(i).......................3, 25, 38

Health & Safety Code section 1367.69(b)....................3, 25, 38

Health & Safety Code section 1368.01(a)....................3, 33, 38

Health & Safety Code section 1368.04(b)................3, 33, 34, 38

Health & Safety Code section 1386.........................37, 38, 39

Regulations

CA Code of Regulations, Title 10, Chapter 3

section 1300.67 .......................................... 26, 29

CA Code of Regulations, Title 10, Chapter 3

section 1300.67(f) ........................................ 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.67(g) ............................................ 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.1 ........................................ 21, 31

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.1(a) ...................................... 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.1(c) ...................................... 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.1(d) ...................................... 3, 38

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CA Code of Regulations, Title 10, Chapter 3

section 1300.67.1(e) .......................................... 3

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.2 ........................................ 20, 29

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.2(a) ...................................... 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.2(b) ...................................... 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.2(c) ...................................... 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.67.2(d) ...................................... 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.68 ........................................3, 34, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.70(b)(2)(G) ..................................... 27

CA Code of Regulations, Title 10, Chapter 3

section 1300.70(b)(2)(G)(5) ............................... 3, 38

CA Code of Regulations, Title 10, Chapter 3

section 1300.70(b)(2)(G)(6) ............................... 3, 38

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98-126, RGR

The complainant, Commissioner of Corporations of the State of

California (the "Commissioner"), charges Respondent Kaiser Foundation

Health Plan, Inc., ("Kaiser") as follows:

I.

INTRODUCTION

1. This accusation seeks the imposition of a fine against Kaiser as an administrative penalty for systemic barriers to health care services that caused the preventable death of one of its enrollees, Margaret Utterback, on January 28, 1996.

2. On January 26, 1996, Mrs. Utterback was experiencing severe pain relating to an abdominal aortic aneurysm. She was exhibiting classic symptoms of the life-threatening condition, and her medical
history made her a likely candidate for this condition. Even so, it took Mrs. Utterback eight hours of continual efforts to obtain an appointment with her physician. Within an hour of seeing her physician her aneurysm burst. By that time, surgery was too late.

Despite transfusions of 24 pints of blood, Mrs. Utterback died in the
Kaiser Hayward Hospital Critical Care Unit ("CCU") a day and a half later.

3. While Mrs. Utterback’s efforts to see her doctor on January 26 were being hindered, other patients with relatively minor complaints, such as "arm pain" and "right finger pain", were calling into Kaiser and received appointments to be seen by her doctor.

4. Mrs. Utterback had been a Kaiser patient for fifty years prior to her death. Her death is rendered more tragic by the fact that an abnormality in the area of her abdominal aorta is discernible in a Kaiser x-ray taken in 1986. During the subsequentten years, two different primary care physicians failed to provide preventive care that could have saved her life, and avoided her need for emergency services on January 26 that turned out not to be available.

5. This accusation is based upon Kaiser’s failure to provide Mrs. Utterback basic health care services, including both preventive and emergency care, its failure to make health care services reasonably accessible to her, and its failure to resolve her family’s subsequent grievance in a prompt and reasonable manner.

II.

JURISDICTION

6. At all times since November 4, 1977, Kaiser has been, and now is, a full service health care plan and the holder of a license (File No. 933 0055) issued by the Commissioner pursuant to the Knox- Keene Health Care Service Plan Act of 

1975, Health and Safety Code section 1340 et seq. ("Knox-Keene Act"). Its principal corporate office is located at 1800 Harrison Street, 8th Floor, Oakland, California 94612.

7. The Commissioner is vested with responsibility for the administration and enforcement of the Knox-Keene Act pursuant to Health and Safety Code ("H & S") section 1341 et seq. During an investigation into this matter, the Department of Corporations (the "Department") found evidence that Kaiser violated several Knox-Keene provisions as follows: a. Kaiser failed to ensure that subscribers and enrollees would receive available and accessible health and medical services 
rendered in a manner providing continuity of care (H & S section 1367(d), 1367(e)(1) and 1367(f) and California Code of Regulations, Title

10 ("10 CCR"), Chapter 3, section 1300.67.1(a), (c) and (d) and section 1300.67.2(a), (b), (c) and (d));

b. Kaiser failed to provide basic health care services including providing preventive care and emergency services(H & S section 1345(b)(5) and (6), 1367(i),1367.69(b), 10 CCR sections 1300.67(f),1300.70(b)(2)(G)(5) and(6));

c. Kaiser failed to demonstrate that the plan had the organizational and administrative capacity to provide services to enrollees (H & S section 1367(g)), which includes the maintenance and ready availability of medical records (10 CCR 1300.67.1(c)); and

d. Kaiser failed to act promptly and reasonably with regard to its grievance procedure (H & S Code section 1368.01(a), 1368.04(b), 10 CCR 1300.68).

III.

STATEMENT OF FACTS

A. MARGARET UTTERBACK

8. In January 1996, Margaret Utterback, 74 years old, and a Kaiser patient for 50 years, was still living in her home. She took reasonably good care of herself and was in generally good health up to the day she went to Kaiser with back pain thatradiated to the right side of her abdomen.

9. Her medical problems were few. She had suffered from hypertension for more than 30 years. She also suffered from minor ailments such as arthritis in her feet and skin lumps on her arms which her physician believed was sarcoidosis, a connective skin disorder. However, she was diligent in getting medical care when needed and carrying out follow-up visits.

10. Kaiser medical records indicate that Mrs. Utterback had been a smoker since the 1940’s and was diagnosed at Kaiser for atherosclerosis. She quit smoking approximately 2 years before her death in January 1996.

11. Mrs. Utterback had a family history of high blood pressure and arteriosclerosis. During all relevant times, medical records indicate that Kaiser was aware of this family medical history.

B. ABDOMINAL AORTIC ANEURYSMS

12. An abdominal aortic aneurysm ("AAA") develops when weakness in the wall of the aortic artery causes the vessel to swell. Rupture or threatened rupture of an abdominal aneurysm is a surgical emergency. If the vessel bursts, the patient can bleed to death in a short period of time.

13. The condition normally takes many years to develop. Typically, a developing aortic aneurysm will increase its diameter at a rate of approximately 0.5 c.m. per year.

14. Most cases of AAA are caused by arteriosclerosis. the formation of aortic aneurysms. Hypertension is one of the mostcommon conditions which increases the stress of the aortic wall.

15. For a patient who is asymptomatic, the diagnosis may first be suspected by an x-ray of the chest or abdomen, which will demonstrate a curvilinear calcification in the wall of the aneurysm. The diagnosis is confirmed by an ultrasound.

16. Generally, a symptomatic patient with AAA is an older person who complains of abdominal pain and back pain. AAA’s impinge on the lumbar vertebrae which is often responsible for lower back pain.

17. Surgery prolongs life by preventing rupture of the aneurysm. Symptomatic or expanding aneurysms should have prompt surgical correction.

18. Some patients with ruptured aneurysms survive long enough to become candidates for emergency surgical repair. 

These patients will usually present in shock and have severe pain in their abdomen, lower back, or both. A tender pulsatile mass may be palpated. The survival rate with emergency surgery in these circumstances is about 50 percent.

C. THE MORNING OF JANUARY 26, 1996 AND MRS. UTTERBACK’S CALLS TO KAISER

19. On January 26, 1996, Mrs. Utterback woke up with pain in her back which radiated toward her abdomen on the right side. She had been experiencing back pain since the day before and thought the pain was due to stiffness from previously sitting in a hard chair. The pain progressed that morning. She also experienced abdominal pain that she attributed to shellfish she had eaten the previous night.

20. At approximately 8:15 a.m., Mrs. Utterback called her daughter, Barbara Winnie, and asked her to come over because she had experienced a sharp pain while coming out of her bathroom that morning.

21. When Mrs. Winnie arrived at approximately 9:30 a.m., she found her mother in bed, still in her pajamas. Although uncomfortable, Mrs. Utterback was not feeling the sharp pain that she had experienced earlier.

22. She reported to her daughter that she had tried reaching her primary care physician at Kaiser, Rod Perry, M.D., when the clinic opened at 8:30 a.m., and was on hold for so long that she decided to hang up. The phone number that Mrs. Utterback used to secure an appointment came from her address book under "Rod Perry."1

23. Between 9:45 a.m. and 10:00 a.m., Mrs. Utterback tried to call Kaiser again. Mrs. Winnie overheard this conversation and was also informed of the details of the conversation afterwards. Mrs. Winnie essentially recalls this call as follows:

24. Mrs. Utterback explained her symptoms, that she was having pain on the right side of her back that was radiating to her abdomen, and asked if she could get an appointment to see her doctor. She was

1 The phone number for Dr. Perry previously was for his clinic directly, but later was "rolled-over" to the Hayward phone center that consisted of 5 to 6 different rooms of medical assistants ("M.A.’s") and/or registered nurses ("R.N.’s") at another Kaiser location. In other words, even though Mrs. Utterback used the phone number that had once been assigned to Dr. Perry, her call could be answered by any number of M.A.’s in a completely different building. In fact, the phone number could no longer connect Mrs. Utterback with Dr. Perry at Medical Station 6 in Point

Eden Clinic. All calls went to one of many phone rooms in the Kaiser Hayward Hospital that was approximately 2 miles from Dr. Perry at Point Eden Clinic, most of which were operated and occupied by medical assistants.told by the person who answered the phone that there were no appointments available. Mrs. Utterback explained her symptoms again and asked if she could be put through to her doctor or the clinic so she could talk to someone there, but the person on the other end of the phone said that she could not do that. After that, the person said something to the effect that, "If you think that you need to be seen, call back at 3:00 p.m. and get an urgent care appointment for that evening." 

Mrs. Utterback was told that the urgent care clinic was the procedure to be used when there were no same day appointments available with her doctor.

25. After hanging up, Mrs. Utterback and Mrs. Winnie discussed the conversation and Mrs. Utterback decided to call back. Mrs. Utterback described her symptoms again to the new person who answered the phone, i.e., right side back pain that was radiating to her abdomen. After being transferred a couple of times, she finally was put in contact with someone whomMrs. Utterback thought was kind and willing to listen. This particular woman offered to send an e-mail message to Mrs. Utterback’s physician, Dr. Perry, about her wanting to be seen that day. Mrs. Utterback understood that once the e-mail 
was sent, she was to wait for her doctor to get back to her. Mrs. Winnie recalls that this conversation occurred at approximately 10:15 a.m. which is consistent with the time that the e-mail2 was actually

2 The actual e-mail message that was sent by a medical assistant is considered an official medical record which Kaiser has consistently failed to produce. E-mail messages are usually sent to the patient’s physician for him or her to decide what to do. The medical assistant sends the message from whatever phone room she is in, and it prints out at the physician station in hard copy on pink paper. Once the disposition is written on the hard copy of the e-mail message, this document is filed in the medical chart as an official medical record. E-mail messages are kept on the computer system for 
two weeks (and backed-up for 90 days). Even though the Utterback family members came to Kaiser to complain about the needless death of their mother before the two week period expired, no one seems to be able to findsent at 10:18 a.m.

26. Mrs. Utterback was not given an appointment during this conversation.

D. THE FIRST LONG WAIT

27. While waiting to hear back from Dr. Perry’s office, Mrs. Utterback reclined almost the whole time, but did get up at around 12:00 noon to have some soup that her daughter prepared for her. After not hearing back for nearly two hours, the two of them agreed that they would surely hear from Dr. Perry either during lunch or right after the lunch hour. However, when 1:45 p.m. arrived, Mrs. Utterback and her daughter agreed that "Enough is enough" and tried to call back to find out what, if anything, Dr. Perry had decided to do.

28. Mrs. Utterback called and explained to the person who answered the phone this time the steps she had taken up to this point in order to be seen by Dr. Perry. She again explained that she had right back pain radiating to her abdomen, which was getting more painful. She reiterated her efforts to see Dr. Perry and her symptoms as she was transferred several times. She also explained that she was frustrated, wanted a same day appointment and had been waiting to hear from Dr. Perry since 10:00 a.m. that morning. the message nor does it appear that an extra copy was printed within that two week period.

Mally Monton, M.A., the person who sent the message at 10:18 a.m. on January 26, 1996 had the opportunity to copy the message, verbatim, while she was questioned about the contents of it less than two weeks after the incident. This is the only copy of the message the Department has been able to obtain. The copy from which Ms. Monton wrote down the contents of the message was inexplicably thrown away in the trash moments later by her supervising nurse.

29. After speaking to several different people, it appeared to Mrs. Winnie that her mother had finally reached someone sympathetic based on the tone of Mrs. Utterback’s voice. Apparently, this person offered to transfer Mrs. Utterback to "Patient Assistance." However, when that transfer occurred, Mrs. Utterback reached a voice mail recording so decided to hang up.

30. Mrs. Utterback immediately called back the phone bank one more time, and after explaining her symptoms and all her futile attempts to get assistance again, she finally, after several attempts, reached a person who was able to get her scheduled for an appointment at 4:15 p.m.3 However, Mrs. Utterback had to insist on being seen that day because the medical assistant, at first, told Mrs. Utterback that Dr. Perry declined giving her an appointment that day, but opted to write her a prescription for narcotic pain medicine instead4. Finally, upon Mrs. Utterback's insistence, the medical assistant agreed to give her an appointment late in the day.

3 At all times, according to Kaiser’s own records, Mrs. Utterback never was connected to a registered nurse nor instructed to go to the emergency room. There is no evidence that Mrs. Utterback was offered an appointment with anotherphysician. In fact, it was in violation of Kaiser’s own appointment guidelines to have offered Mrs. Utterback an appointment with another physician.

Most important, however, is that it is not unreasonable for a patient to want to see her own doctor. This value is reflected in the Knox-Keene Act where it assures that subscribers and enrollees receive available and accessible health and medical services rendered in a manner providing continuity of care (H & S section 1367(d) and 10 CCR section 1300.67.1(a) (c), 

(d), and (e)). Seeing one’s own physician who is familiar with one’s medical history is not to be minimized. For example, in Mrs. Utterback’s case, a physician who is aware of her history of high blood pressure, her smoking habits, her family history of deaths related to arteriosclerosis and her own history of atherosclerosis, coupled with Mrs. Utterback’s clear descriptions of symptoms that day, could have been armed with the information necessary to recognize that AAA was certainly a strong possibility.

4 The prescription was written either for Tylenol with codeine or Vicodin. The actual prescription is also missing.

31. Mrs. Utterback and her daughter decided to go immediately to the clinic in order to try to get in to see Dr. Perry sooner if possible. This is corroborated by Kaiser employee Kali Bell, the medical assistant who booked the appointment at Dr. 

Perry’s station, who recalls that the daughter told her that they were leaving right away to try to get worked in sooner that day.

E. MRS. UTTERBACK’S CONTACT WITH MEDICAL PROFESSIONALS PRIOR TO ARRIVING AT THE CLINIC AND THE FAILURE TO FOLLOW APPOINTMENT GUIDELINES

32. Until arriving at the clinic, Mrs. Utterback never spoke to a registered nurse and/or "advice" nurse5 nor was she instructed to go to the emergency room by any Kaiser personnel.

33. Dr. Perry was the only licensed medical professional who knew of and/or otherwise had access to Mrs. Utterback’s medical history, knew of Mrs. Utterback’s symptoms stated in the e-mail message and her desire to be seen that day, yet his response was toprescribe Mrs. Utterback a narcotic pain medication.

F. THE LONG WAIT AT THE KAISER CLINIC

34. Mrs. Utterback left after 2:00 p.m. and checked in no later than 2:45 p.m.6 at the Kaiser Point Eden clinic. Despite requesting three separate times to be seen sooner because her pain was worsening, staff at Kaiser refused. While waiting, Mrs. Utterback’s

5 Advice nurses are registered nurses ("R.N.s").

6 Kaiser records indicate that Mrs. Utterback checked in at 3:32 p.m. The actual check-in time is still in dispute.pain increased to the point where her discomfort was visually observable. She squirmed in her chair and held onto her side. At all times, Mrs. Utterback was in plain view of the reception desk and the open hallway where the medical assistants would come out to call patients into the back. Not until 4:30 p.m. did Dr. Perry examine her, 15 minutes after her appointment time.

35. At one point, the medical assistant who was "rooming7" for Dr. Perry’s patients that day, Fatima Mehrzad, was informed of Mrs. Utterback’s desire to be put in a room. Two Kaiser receptionists testified that Ms. Mehrzad came out to the front, glanced through Mrs. Utterback’s chart8, looked out into the waiting room where she was sitting and stated, "She doesn’t look that sick to me" tossed the chart back and walked away.

G. THE RAPID DIAGNOSIS

36. Once examined by Dr. Perry, he immediately diagnosed Mrs. Utterback with a dissecting9 abdominal aortic aneurysm ("AAA"). The x-ray report at the time of rupture indicated that the aneurysm was at least 10 c.m. in diameter.

37. A dissecting AAA is a life-threatening condition that requires complete adherence to a stringent set of protocols in order to save the patient’s life. Pre-hospital treatment consists of relief of pain (morphine sulfate is recommended if diagnosis is

7 "Rooming" means placing patients into a physician’s assigned exam room.

8 The "chart" is what the clinic puts together in the absence of being able to btain the actual medical chart from the chart room which requires several hours otice. The information available to the rooming medical assistant is the atient’s name, age, address, Kaiser medical number, reason for being seen and the ppointment time.

9 Dissecting AAA means that the aorta was already splitting apart.strongly suspected), immediate transport to hospital, decreasing the nxiety of the patient, gentle handling of patient, oxygen administration, initiation of two large bore IV’s and cardiac onitoring.

38. However, instead of calling "911", or arranging for dvanced Life Support ("ALS")10 to the Kaiser Hayward Hospital, Dr. erry initially thought that Mrs. Utterback and her daughter should rive themselves to the emergencyroom. After speaking to personnel n the emergency room at Kaiser Hayward Hospital, he decided to have he R.N. on staff order BasicLife Support ("BLS"), as opposed toALS, for the transfer. At the same time, Dr. Perry failed to followeven the simplest of standard AAA protocols, such as starting IV’s nd oxygen and/or and administering pain medication to keep Mrs.Utterback calm.

39. Lynnel Schexnayder, R.N. testified that she asked Dr. Perry ontwo occasions before arrival of the transport vehicle whether he wanted her to start an IV. Both times Dr. Perry said no. He even
declined Ms. Schexnayder’s suggestion to put Mrs. Utterback on a cardiac monitor.

40. The seriousness Mrs. Utterback’s diagnosis and medical condition were not communicated to Hayward Fire Department or to ambulance personnel, American Medical Response ("AMR"). For example,

10 In the ambulance/emergency services system, "Advanced Life Support" arrives the fastest, thereby getting the patient to the emergency room faster. It is also staffed with medical professionals who are licensed to start IV’s, administer oxygenand start cardiac monitoring. On the other hand, the other transport choice.is "Basic Life Support" which does not arrive as fast, is not always staffed with paramedics who are qualified to give the same level of care as the medical professionals 
who are assigned to Advanced Life Support vehicles.

Chief Michael Jay of Hayward Fire Department, who had been dispatched to the scene, was not informed that there was a diagnosis of a dissecting AAA. Instead, he was informed by the clinic R.N. that ":…the patient needed a transport…[and the patient] was complaining of lower back pain." Chief Jay stated that a diagnosis of a dissecting AAA indicates a sense of urgency that would necessarily need to be communicated by the medical facility to the emergency personnel on scene, including himself. This was never done.

41. This lack of urgency is confirmed in the ambulance report where it states, "M.D. nowhere to be found. R.N. had very little pt. information. They just wanted pt. transferred to ? for evaluation."

42. Mrs. Utterback did not arrive at the emergency room until 5:31 p.m. — one hour after diagnosis. Mrs. Utterback’s aneurysm ruptured only minutes after arriving at the emergency room.

H. THE EFFECT OF KAISER’S FAILURE TO INSTIGATE STANDARD AAA

PROTOCOLS

43. At some point in time, the transport was eventually changed from BLS (what Dr. Perry ordered) to ALS which is the type of transport consistent with the life-saving measures set forth in standard AAA protocols. It is not clear who upgraded the transport from BLS to ALS, but it was not Dr. Perry or anyone in his clinic.

44. The transport vehicle arrived sometime between 5:14 p.m. and 5:18 p.m. after being dispatched at approximately 5:02 p.m., at least one-half hour after diagnosis. By then, Mrs. Utterback was in extreme pain and without any medication to keep her calm. She was thrashing about in the gurney in the ambulance. The medical personnel in the ambulance did start oxygen, but were unable to get even an assessment from Mrs. Utterback because she was "…very uncomfortable." IV’s were attempted, but the ambulance crew was unable to complete the task.

45. By the time Mrs. Utterback arrived in the emergency room, no IV’s had been placed and the emergency room nurses struggled to get IV’s started because by that time it was within minutes or seconds before rupture. Mrs. Utterback was moving about so much in pain that she simply was not able to lie still for the nurses.

I. THE RUPTURE AND THE EMERGENCY SURGERY

46. Only minutes after arriving at the emergency room, Mrs. Utterback’s abdominal aorta ruptured and her blood pressure "crashed". Mrs. Utterback was rushed to surgery as large volumes of her blood were being emptied into her body. By the time the five hour surgery had ended, Mrs. Utterback had been given 24 pints of blood.

J. MRS. UTTERBACK’S LAST HOURS OF LIFE

47. Mrs. Utterback died one and a half days later in the CCU. Her last hours consisted of being hooked up to a heart-lung machine and undergoing extreme measures in order to attempt to raise her blood pressure. Her only communication with her family was when she squeezed her daughters’ hands to indicate that she was in pain (no pain medications were administered to Mrs. Utterback in CCU until an hour or two before her death).

48. One of Mrs. Utterback’s legs had completely lost all circulation and was discolored and the other one was deteriorating when a non-Kaiser, on-call physician finally took the family aside and informed them that Mrs. Utterback had less than a 0.5% chance to live, which shocked the family as no one had taken the time to explain Mrs. Utterback’s prognosis to the family before that point. Ironically, it was a non-Kaiser physician who took the time to explain Mrs. 

Utterback’s prognosis and highly recommended pain medication in order to offer Mrs. Utterback a more comfortable death.

49. After further delays due to confusion in the physician's orders, Mrs. Utterback received her first dose of pain medication since surgery. Shortly after that, she died.

K. THE FAMILY’S FUTILE ATTEMPTS TO GET ANSWERS FROM KAISER THROUGH

ITS GRIEVANCE PROCESS

50. Soon after their mother’s death, the family attempted to get an explanation of what happened. They asked why their mother was not able to get an appointment sooner, why she was never triaged by a medical professional before Dr. Perry finally saw her at 4:30 p.m., why she was not seen sooner when she arrived early at the clinic and was in obvious pain, why 

it took so long to transport her to the emergency room after diagnosis and why the AAA protocols were not started in the clinic. To date, the family has not received a satisfactory explanation from Kaiser for any of these concerns.

51. On February 6, 1996, 12 days after Mrs. Utterback died, her three daughters met with an employee at Patient Assistance in Kaiser Hayward Hospital where they filed an initial complaint on behalf of the family. However, the family was told to provide a letter to Kaiser outlining its complaint, which was done by February 21, 1996. Mrs. Utterback's daughters also visited the functional unit manager for Medical Clinic 6, the clinic where Dr. Perry worked, as well as Dr. Perry himself.

52. Kaiser was on notice of the family’s complaint before the January 26, 1996 e-mail message was deleted from the computer system.11 This is important because later the message was never located even though Kaiser had notice that the facts and circumstances surrounding Mrs. Utterback’s death was an important issue to the family.

53. After not receiving acknowledgment from Kaiser for almost two months , on March 20, 1996, the family initiated a meeting with Kaiser physician, Paul H. Jewitt, M.D., Physician-in-Chief at Hayward.

54. On May 17, 1996, more than three months after their initial contact with Kaiser, the family received its first response from Kaiser. However, the response did not address all of the family’s questions. The response was a short letter which states:

This is a followup (sic) letter to our meeting regarding your concerns…I understand that our Intensive Care Services Manager, Ms. Celeste Farugia, has spoken with you regarding the concerns you had about your mother’s nursing care while in the hospital’s Intensive Care Unit here.

11 Testimony revealed that e-mail messages were kept on the computer system for at least two weeks. Kaiser produced documents in this matter that indicate that email messages are backed-up and that Kaiser has at least 90 day retention of these files.

I have reviewed the concerns that you had with the managers of our Internal Medicine Department and have spoken with Dr. Rod Perry regarding your concerns as well. Again, let me express my personal sympathies on the loss of your mother. I would also like to thank you for taking your time to let me know of your concerns.

55. On October 2, 1996 Mrs. Utterback's daughter Terry Preston again visited Kaiser's Patient Assistance and was unsuccessful in getting any further information regarding any investigation that was done regarding the family’s complaint. 

In fact, Patient Assistance had no information, no file and no reference to a complaint by Mrs. Utterback’s family. Despite promises to call back when information became available, Patient Assistance never contacted Mrs. Preston with a substantive response.

56. After filing a Request for Assistance ("RFA") with the Department of Corporations (the "Department") in September, 1996, Kaiser eventually responded to Mrs. Utterback’s family. In its

October 15, 1996 letter, Kaiser's response was as follows:

* * *

…According to Dr. Perry, Mrs. Utterback had called earlier that day requesting an appointment with him. (It was noted that she preferred to see him personally rather then (sic) receiving treatment from either one of his colleagues or going directly to the Emergency Department.) Dr. Perry indicated that although his schedule was full, he would be able to see her at 4:15pm if she wished to wait; which was agreeable to the patient. She was registered and seen within 15 minutes of her scheduled time.

…Mrs. Utterback’s blood pressure was 120/90, her pulse was 110 and regular. She was afebrile and although she looked uncomfortable, there were no signs of acute stress…

…Dr. Perry…requested an ambulance for immediate transport to the Emergency Department. The ambulance arrived within fifteen to twenty minutes of the call…It was noted that the patient was stable at the time of transport.

* * *

A thorough and intensive internal review was conducted regarding Ms. Utterback’s medical care…

57. This letter contains almost nothing but misstatements. Mrs. Utterback did not just have abdominal pain: she had back pain that radiated to her abdomen; there is no evidence that Mrs. Utterback preferred to see only her physician rather than seeing a colleague or going to the emergency department; Dr. Perry did not arrange for the appointment, his medical assistant made the appointment on her own and later informed Dr. Perry that the reason an appointment was given was 
because Mrs. Utterback "insist[ed]"; Mrs. Utterback was not registered and seen within 15 minutes of her
appointment time, it was at least one hour; although there is an implication that Mrs. Utterback’s vital signs were stable, 120/90 for a blood pressure is not normal for a person who suffers from hypertension nor is a resting pulse of 110 considered normal; there is a dispute in facts whether Mrs. Utterback was exhibiting acute distress; Dr. Perry did not "suspect" a leaking aneurysm, he diagnosed Mrs. Utterback as having a dissecting abdominal aneurysm; Dr. Perry first thought that the family should drive themselves to the E.R. and later asked for a basic life support transport, as such, he did not order the most "immediate" transport available; and finally, regarding the assertion that a "thorough and intensive internal review was conducted regarding the quality of Ms. Utterback’s medical care", this investigation itself puts at issue Kaiser’s failure to thoroughly investigate this matter.

58. Lastly, in this letter a phone number for the family to reach the author of the letter—or any other Kaiser person--to discuss the contents was noticeably missing. This precluded the family from contacting anyone in the event of further questions, although the family did try, unsuccessfully, to reach the letter’s author, Elaine Strahlendorf.

IV.

KAISER’S VIOLATIONS OF THE KNOX-KEENE HEALTH CARE SERVICE PLAN ACT AND THE CALIFORNIA CODE OF REGULATIONS

59. Kaiser has violated the following provisions of the Knox- Keene Act12 and the California Code of Regulations Title 10, 

Chapter 313.

A. KAISER’S PHONE SYSTEM, E-MAIL SYSTEM, APPOINTMENT GUIDELINES, UNDERSTAFFING AND LACK OF DOCUMENTATION CREATED BARRIERS TO ACCESS TO CARE

i. CONTROLLING AUTHORITY

a. Access to Care

H & S Code section 1367(e)(1) states:

All services shall be readily available at reasonable times to all enrollees. To the extent feasible, the plan shall make all services readily accessible to all enrollees.14

The California Code of Regulations set forth standards for health plans to meet with respect to access to care.1512 H & S Code section 1340 et seq.

13 Although the incident occurred in 1996 and some of the violations occurred as early as 1996, the Code sections and the regulations for the current year are being cited as they do not differ substantively from the ones that were in effect in 1996, 1997, 1998 and 1999, unless otherwise noted.

14 Also, H & S section 1367(f) requires a plan to employ and utilize allied health manpower for the furnishing of services to the extent permitted by law and consistent with good medical practice.

15 10 CCR section 1300.67.2 states:

Within each service area of a plan, basic health care services and specialized health care services shall be readily available and accessible to each of the plan's enrollees;

(a) The location of facilities providing the primary health care services of the plan shall be within reasonable proximity of the business or personal residences of enrollees, and so located as to not result in unreasonable barriers to accessibility.

b. Continuity Of Care

H & S Code section 1367(d) states:

The plan shall furnish services in a manner providing continuity of care and ready referral
of patients to other providers at times as may be appropriate consistent with good professional
practice.

The California Code of Regulations set forth standards for health plans to meet with respect to access to care.16

ii. KAISER’S PHONE AND E-MAIL SYSTEM

60. On January 26, 1996, the Kaiser phone and e-mail system did not allow Mrs. Utterback access to care nor did it provide continuity

(b) Hours of operation and provision for after-hour services shall be reasonable;

(c) Emergency health care services shall be available and accessible within the service area twenty-four hours a day, seven days a week;

(d) The ratio of enrollees to staff, including health professionals, administrative and other supporting staff, directly or through referrals, shall be such as to reasonably assure that all services offered by the plan will be accessible to enrollees on an appropriate basis without delays detrimental to the health of the enrollees. There shall be at least one full-time equivalent physician to each one thousand two hundred (1,200) enrollees and there shall be approximately one full-time equivalent primary care physician for each two thousand (2,000) enrollees, or an alternative mechanism shall be provided 
by the plan to demonstrate an adequate ratio of physicians to enrollees.

16 10 CCR section 1300.67.1 states:

Within each service area of a plan, basic health care services shall be provided in a manner which provides continuity of care, including but not limited to:

(a) The availability of primary care physicians, who will be responsible for coordinating the provision of health care services to each enrollee;

* * *

(c) The maintenance and ready availability of medical records, with sharing within the plan of all pertinent information relating to the health care of each enrollee;

(d) The maintenance of staff, including health professionals, administrative and other supporting staff, directly or through an adequate referral of care because she was not able to have telephone contact with a medical professional with enough education, training or experience to triage her symptoms. No one with whom Mrs. Utterback spoke had access to her medical history and/or chart, much less, was actually personally familiar with who she was. In any case, triage ultimately failed because non-medical professionals were screening the calls and no one asked her about her medical history which 
would have triggered a properly trained medical professional to consider the possibility of an emergency condition.

61. Instead, Mrs. Utterback’s complaints and desires were assessed by medical assistants who are not capable of performing medical triage which directly prevented her primary care physician, Dr. Perry, from coordinating her care. As such, the support staff was not sufficient to assure that Mrs. Utterback’s care was provided on a timely and appropriate basis.

62. Lack of documentation was another breakdown in the care provided. The Department’s expert comments:

Sending an e-mail to her PCP without clear process in place as to when or how these e-mails were to be handled by her MD is a breakdown in care. An e-mail that is sent and contains information that needs immediate response in order to prevent delays in getting life-saving care is simply notto be sent. In those situations the MD should be contacted directly by phone to respond immediately or the patient should be sent for immediate evaluation to the ER. It is system, sufficient to assure that health care services will be provided on a timely and appropriate basis to enrollees.apparent that the MA and nurse supervisors did not triage her symptoms properly to have given her proper care.

63. The same expert concludes as follows:

Kaiser lacked adequate processes to ensure acutely ill patients are assessed adequately.

64. Once Mrs. Utterback spoke to and was seen by the first medical professional of the day, Dr. Perry, who was aware of her medical history, she was immediately diagnosed.

iii. KAISER’S APPOINTMENT SYSTEM

65. At 10:18 a.m., the time of Mrs. Utterback’s e-mail, there was an ability to "work in" as many as two appointment times with Dr. Perry—one in the morning and one in the afternoon. However, no one utilized the morning "work in" appointment 

for Mrs. Utterback, or any other patient for that matter. It went unused.

66. One hour after the 10:18 a.m. e-mail to Dr. Perry, a patient canceled a 2:40 p.m. appointment. However, two other patients were given appointments in that 20-minute time slot instead of Mrs. Utterback. One had a complaint of asthma and the other complained of right finger pain. These two patients were booked at 11:39 a.m. and 11:42 a.m. Then, at 1:13 p.m., a patient with arm pain was given the afternoon "work in" appointment, instead giving this appointment to Mrs. Utterback.

67. Kaiser reserves certain "acute appointments" for patients who do not have a primary care physician but need to be seen as soon as possible. The only way for an established patient to get one of these "saved" time slots is to give it to the patient within two hours of the appointment time. This policy means already-established patients like Mrs. Utterback cannotbe worked into these time slots, unless the patient just happened to call within two hours of the free appointment time and no other patient beat her to it. The Department’s expert comments:

Patients should have the ability to access their own personal physician (PCP) when needs arise. All medical offices have methods in place to get messages to be reviewed by the MD.

The MD’s staff has to have the expertise and knowledge to triage patients appropriately. This function is handled by nurses in most physicians’ offices. In the case of Margaret Utterback, this system did not work.

iv. KAISER’S UNDERSTAFFING

68. Once Mrs. Utterback was in the waiting area, access to care did not improve. Medical Station 6 was not only chronically understaffed, it was severely understaffed on January 26, 1996 in that only one Medical Assistant was "rooming" for 3 to 4 physicians, further illustrating Kaiser’s failure to provide access to care.

69. Both of the receptionists and one medical assistant, Kali Bell, in Medical Station 6, specifically recalled that it was well known that there was a patient in the waiting area that day who wanted to get in sooner. In fact, Ms. Bell recalled being told that Mrs. Utterback was crying.

70. Any patient who presents in pain or appears in distress and asks for help in meeting their needs should be given immediate care. The details of Mrs. Utterback’s arrival, repeated requests and wait in the clinic’s waiting room did not trigger any appropriate response by the receptionist or back room nurses.

v. KAISER’S INADEQUATE DOCUMENTATION

71. Finally, Kaiser failed to maintain an adequate system of documentation regarding Mrs. Utterback. The e-mail message was never produced; there were no records regarding any of Mrs. Utterback’scalls to the phone center; there were no records that she was allegedly offered an appointment with another physician, but refused; and no records that she was allegedly instructed to go to the emergency room.

72. Kaiser’s call system, appointment system, lack of staff and lack of adequate documentation created barriers to care. 

As such, Kaiser was in violation of several Knox-Keene requirements as set forth above in this regard.

B. KAISER FAILED TO PROVIDE BASIC HEALTH CARE SERVICES MANDATED BY KNOX-KEENE

H & S Code 1367(i) requires health plans to provide to enrollees all of the basic health care set forth in subdivision (b) of section 1345. This includes preventive care and emergency care services.

i. CONTROLLING AUTHORITY FOR PREVENTIVE CARE

H & S Code section 1345(b)(5) states as follows:

As used in this chapter:

(b) "Basic health care services" means all of the following:

* * *

(5) Preventive health services.

H & S section 1367.69(b) states as follows:

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For purposes of this section, the term "primary care physician" means a physician, as defined in section 14254 of the Welfare and Institutions Code, who has the responsibility for providing initial and primary care to patients, for maintaining the continuity of patient care, and for initiating referral for specialist care. This means providing care for the majority of health care problems, including, but not limited to, preventive services, acute and chronic conditions and psychosocial issues.

10 CCR section 1300.67 states:

The basic health care services required to be provided by a health care service plan to its enrollees shall include:

(f) Preventive health services (including services for the detection of asymptomatic diseases), which shall include, under a physician's supervision,

(1) reasonable health appraisal examinations on a periodic basis;…

* * *

(8) effective health education services, including information regarding personal health behavior and health care, and recommendations regarding

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the optimal use of health care services provided by the plan or health care organization affiliated with the plan.17 ii. KAISER’S SYSTEM FOR PREVENTIVE CARE

73. Kaiser failed to provide preventive care to Mrs. Utterback. There was documentation in her file during a 10 year time span of abnormal x-ray reports and a problem area in the abdomen that needed further evaluation. Other signs of AAA during those 10 years surfaced, yet Dr. Lisker and Dr. Perry, both of Mrs. Utterback’s primary care physicians at different times during this period of time, did not order any further tests. A further test early on, such as an abdominal ultra sound, clearly would have allowed for an earlier diagnosis of the AAA as it is well known that abdominal aneurysms exist for years before patients present with symptoms.

74. The number of years that went by without screening/further testing, the fact that Mrs. Utterback was the classic patient to develop an aneurysm, the fact that there was more than one physician

17 With regard to the plan’s continuing obligation to engage in a Quality Assurance program, 10 CCR section 1300.70(b)(2)(G) imposes the following obligation on health care service plans:

(5) Ensure that for each provider the quality assurance/utilization review mechanism will encompass provider referral and specialist care patterns of practice, including an assessment of timely access to specialists, ancillary support services, and appropriate preventive health services based on reasonable standards established by the plan and/or delegated providers.

(6) Ensure that health services include appropriate preventive health care measures consistent with professionally recognized standards of practice. There should be screening for conditions when professionally

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who had access to Mrs. Utterback’s medical records who did not order

screening or a further test for her, the fact that the complete

medical file is not always available to the physician at the time of

a patient’s appointment because they are kept in a different

location, and the fact that one Kaiser physician cited lack of

preventive care with regard to AAA is a problem at Kaiser, indicate a

pattern and practice by Kaiser of not providing preventive

care/follow up care for AAA.

75. No one took and/or recorded Mrs. Utterback’s blood pressure

when she went to Dr. Perry’s clinic for various check-ups from

10/25/93 through 08/14/95, even though she suffered from hypertension

and was seen by Dr. Perry on eight different occasions during that

timeframe. At the same time, Mrs. Utterback was given hypertension

medication to be taken "as needed." Prescribing blood pressure

medication "as needed" was highly unusual as patients rarely are

aware that they are experiencing high blood pressure because they are

asymptomatic. Neither Dr. Lisker nor Mrs. Utterback’s family

recalled that Mrs. Utterback monitored her own blood pressure.

iii. CONTROLLING AUTHORITY FOR EMERGENCY CARE

H & S section 1345(b)(6) states as follows:

As used in this chapter:

(b) "Basic health care services" means all of the

following:

* * *

recognized standards of practice indicate that screening should be

done.

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(6) Emergency health care services, including

ambulance and ambulance transport

services…"Basic health care services"

includes ambulance and ambulance transport

services provided through the "911"

emergency response system.

10 CCR section 1300.67 states:

Scope of Basic Health Care Services

The basic health care services required to be provided

by a health care service plan to its enrollees shall

include, where medically necessary, subject to any

copayment, deductible, or limitation of which the

Commissioner may approve:

(g) Emergency health care services which shall be

available and accessible to enrollees on a

twenty-four hour a day, seven days a week, basis

within the health care service plan area.

Emergency health care services shall include

ambulance services for the area served by the

plan to transport the enrollee to the nearest

twenty-four hour emergency facility with

physician coverage, designated by the Health Care

Service Plan.

10 CCR section 1300.67.2 states:

Accessibility of Services

Within each service area of a plan, basic health care

services and specialized health care services shall be

readily available and accessible to each of the plan's

enrollees;

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* * *

(c) Emergency health care services shall be available

and accessible within the service area twentyfour

hours a day, seven days a week.

iv. KAISER’S SYSTEM FOR EMERGENCY CARE

76. Dr. Perry prevented the only R.N. on staff from starting

IV’s on Mrs. Utterback while she was waiting for her transport.

Immediately starting an IV is part of any published AAA protocol. As

far as giving Mrs. Utterback any medication, such as valium, to keep

her calm or otherwise reduce her blood pressure, Ms. Schexnayder

testified that the clinic did not even keep that type of medication

on the premises.

77. Dr. Perry initially wanted the family to drive themselves

to the ER and later insisted that only basic life support (which

takes much longer to arrive than advanced life support) be ordered.

In the event that "911" was called and the diagnosis of dissecting

AAA was stated, an ALS would have been dispatched. However, Kaiser

staff is encouraged not to use "911". Instead, Dr. Perry’s delay in

deciding what type of transport to order (as "911" was not an option)

only added to the delay.

78. The lack of communication by Kaiser to the firemen and AMR

about the seriousness of Mrs. Utterback's condition caused the

ambulance to downgrade the transfer from a Code 3 to a Code 2 and

unnecessarily delay her care and transfer even more.

79. Kaiser does not have AAA protocols in its internal medicine

clinics for doctors or registered nurses, even though AAA protocols

do exist for the Kaiser emergency room. Kaiser expects its

outpatient doctors and registered nurses to rely on their past

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training and experience and apply it to AAA patients without so much

as the availability of continuing education and/or a set of standard

protocols for this condition. This is the case even though a

ruptured AAA can cause a fatality within a matter of minutes and

patients, when presenting to a medical professional, have no idea

that they are experiencing symptoms related to a fatal condition. It

is well known that only a trained professional can detect the signs

for AAA.

80. Kaiser violated its obligation to provide Mrs. Utterback

with the basic health care services of preventive care and emergency

care, both of which could have greatly reduced her suffering and

saved her life.

C. KAISER FAILED TO DEMONSTRATE THAT IT HAS ORGANIZATIONAL AND

ADMINISTRATIVE CAPACITY TO PROVIDE SERVICES TO ENROLLEES,

INCLUDING THE MAINTENANCE OF MEDICAL RECORDS

H & S Code section 1367(g) states:

The plan shall have the organizational and administrative

capacity to provide services to subscribers and enrollees.

10 CCR 1300.67.1 states:

Within each service area of a plan basic health care

services shall be provided in a manner which provides

continuity of care, including but not limited to:

(c) The maintenance and ready availability of medical records, with sharing within the plan of all pertinent information relating to the health care of each enrollee.

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81. Kaiser failed to demonstrate that it had the organizational

and administrative capacity to provide health care services to its

enrollees by adequately maintaining medical records.

82. EVERY SINGLE copy of the original e-mail message and the

accompanying prescription, both medical records, are missing from

Kaiser’s files. Although at one point the medical assistant who sent

the e-mail message from the Phone Center was shown a white photocopy

of the e-mail message by her supervisor, that supervisor was seen

throwing it in the trash.

83. Even though all e-mail messages are kept in the system for

at least two weeks after being created and sent, and backed-up for at

least 90 days, and the family first complained to Kaiser only 12 days

after the e-mail message was sent, no one at Kaiser retrieved a copy

of the e-mail off the system before it was automatically deleted.

84. The functional unit manager for Dr. Perry’s medical station

revealed that she also may have had a copy of the e-mail message at

one time, but any copy that she may have possessed is missing as

well.

85. Also, that same functional unit manager had notice, early

on, of a potentially serious breakdown in the system long before the

family came in 12 days after the incident to complain. Again, no

reasonable explanation exists for why the e-mail message is missing,

why a copy was not generated for the file if the original was

missing, or why the record was not produced to regulatory agencies.

86. The search for the missing e-mail message did not end with

the Utterback family complaints and inquiries and the Department’s

initial request for medical records. During the present

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investigation, a subpoena duces tecum was personally served on Kaiser

on February 2, 1999. Any notes taken by any employee of Kaiser who

answered the phones the day that Mrs. Utterback called were

specifically requested but not turned over to the Department until

after it took testimony from Sandee Castellanos18 on April 6, 1999

when the Department discovered the existence of Mally Monton’s

handwritten notes. Kaiser had possession of these notes before Ms.

Castellanos’ testimony, yet these notes were not produced until

specifically requested again.

87. As such, the Department finds that Kaiser lacks the

administrative capacity to maintain medical files, especially those

relating to a fatality in its own facility, where the family, the

Department and the California Medical Board are all searching for

answers.

D. KAISER FAILED TO PROMPTLY AND REASONABLY RESOLVE THE FAMILY’S

GRIEVANCE

H & S Code section 1368.01 (for years 1996-1999)19 stated:

(a) The grievance system shall require the plan to resolve

grievances within 30 days whenever possible and shall

require the plan to provide enrollees and subscribers

with a written statement on the disposition or pending

18 Ms. Castellanos, R.N. was a functional unit manager in January 1996 and

presently is the Service Director for Specialty Care.

19 The current version of H & S Code section 1368.01(a) is as follows:

(a) The grievance system shall require the plan to resolve grievances within

30 days.

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status of the grievance within 30 days of the plan’s

receipt of the grievance.

H & S Code section 1368.04(b)(currently)20 states:

The commissioner may, after appropriate notice and

opportunity for hearing in accordance with Section 1397, by

order, assess administrative penalties, if the commissioner

determines that a health care service plan has knowingly

committed, or has performed with a frequency that indicates

a general business practice, any of the following

(1) Repeated failure to act promptly and reasonably to

investigate and resolve grievances in accordance with

section 1368.01.

10 CCR section 1300.68. Grievance System

A plan grievance system established pursuant to the

requirement of Section 1368 of the Act shall include at

least the following features:

(a) The system shall be established, pursuant to written

procedures, for the receipt, handling and disposition

of complaints. An officer of the plan shall be

designated as having primary responsibility for the

maintenance of such procedures and for the review of

their operations and for the utilization of any

emergent patterns of grievances in the formulation of

policy changes and procedural improvements in the

plan's administration.

20 The previous H & S Code section 1368.04(b) set a limit of $250,000 for fines

against health care service plans for repeated violations of section 1368.01.

Currently, there is no longer a cap on fines.

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* * *

(c) As to each complaint received in person or by

telephone at a grievance location, a written record

shall be made, including the date, identification of

the individual recording the grievance, and

disposition.

* * *

(e) Complaint forms and a copy of the grievance procedure

shall be readily available at each facility of the

plan and the plan shall provide them to subscribers

and enrollees promptly upon receipt of a request.

* * *

(g) A grievance system shall provide (1) for the

acknowledgment of the receipt of a complaint and

notice to the complainant of who may be contacted with

respect to the complaint within 20 days, and (2) for

notice and a written statement to the complainant of

the disposition or pending status of the complaint

within 30 days of the plan's receipt of the complaint.

Where the plan is unable to distinguish between

complaints and inquiries, they shall be considered

complaints.

(h) A grievance system shall provide for a prompt review

of complaints by the management or supervisory staff

responsible for the services or operations which are

the subject of the complaint.

88. Kaiser did not meet the 30-day time limit to respond to the

family’s grievance on several occasions, nor was a complaint form

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and a copy of the grievance procedure made available to the family.

Kaiser never acknowledged receipt of the complaint and at no time

did Kaiser inform the family of who it could contact with regard to

its complaint. All these failures by Kaiser were in violation of

the law.

89. The family first complained to Kaiser in person on February

6, 1996. Even though a report was taken, they were told that they

needed to put their complaint in a letter. The family completed

this writing and submitted it to Kaiser in mid-to-late February.

Kaiser never acknowledged receipt of this complaint.

90. Although the family met in person with Dr. Jewitt,

Physician-in-Chief at Hayward, at the end of March pursuant to the

family’s persistent efforts, it was not until two months later that

the family received its first response. When it did, the response

was a perfunctory letter with no information.

91. In or about June, the family then contacted the Department

for assistance to get answers to its questions. The Department

became involved in a formal Request for Assistance ("RFA") in

September. Although Kaiser was given an adequate time to respond to

the RFA, when Kaiser responded to the family and provided the

Department with a copy of the letter, the letter was filled with

misstatements, half-truths and self-serving statements that did

nothing more than frustrate the family. Kaiser did not indicate that

it needed more time to complete its investigation; this letter

appeared to be its full explanation.

92. Not once did Kaiser reveal to the Department or to the

California Medical Board during their inquiry that a relevant medical

record was missing or that Dr. Perry attempted to prescribe a

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narcotic to Mrs. Utterback instead of seeing her. It was noted by

the Department during this investigation that during the Kaiser peerreview

process, not one single reviewing physician had access to the

e-mail and prescription for a narcotic.

93. Again, in early October, Mrs. Preston went to Patient

Assistance to obtain any information contained in the grievance file.

She was informed that Kaiser had no such file. Patient Assistance

never followed through with the request to view the file.

94. When KRON News TV, San Francisco, was doing a story on Mrs.

Utterback in November, 1996, in an internal e-mail about how to

handle press questions as a result of the KRON broadcast; and more

recently, during a public committee hearing regarding Assembly Bill

285, Kaiser represented to the public that Mrs. Utterback was

unequivocally told to go to the E.R. Kaiser indicated that it came

to this conclusion by reviewing its records. Yet, to date, not a

single witness or a single document produced to the Department by

Kaiser supports this.

95. The Kaiser grievance system was virtually non-existent and

a sham in violation of the Knox-Keene Act. Kaiser was not only

exceptionally tardy in responding to the Utterback family, Kaiser

provided no sincere effort to address both the concerns of Mrs.

Utterback's family and the Department.

V.

DISREGARD FOR THE REQUIREMENTS OF THE ACT

MAKE IT NECESSARY TO ASSESS ADMINISTRATIVE PENALTIES

96. Health and Safety Code section 1386 authorizes the

Commissioner to assess administrative penalties:

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The commissioner may, after appropriate notice and opportunity

for a hearing, by order, suspend or revoke any license issued

under this chapter to a health care service plan or assess

administrative penalties if the commissioner determines that the

licensee has committed any of the acts or omissions constituting

grounds for disciplinary action.

97. The following acts or omissions constitute grounds for

disciplinary action by the commissioner:

(6) The plan has violated or attempted to violate…

any provision of this chapter or any rule or

regulation adopted by the commissioner pursuant…

to this chapter.

98. Based upon the foregoing facts, the Commissioner finds that

the Respondent has violated H & S Code sections 1367(d), 1367(e)(1)

and 1367(f) and 10 CCR sections 1300.67.1(a), (c) and (d), and

section 1300.67.2(a), (b), (c) and (d); H & S Code sections

1345(b)(5) and (6), 1367(i), 1367.69(b), 10 CCR sections 1300.67(f)

and (g), 1300.67.2(c), 1300.70(b)(2)(G)(5) and(6); H & S Code section

1367(g) and 10 CCR 1300.67.1(c); H & S Code sections 1368.01(a),

1368.04(b) and 10 CCR 1300.68 as well as other acts and omissions

which constitutes grounds for disciplinary action pursuant to H & S

Code section 1386.

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99. The Commissioner therefore intends, and hereby gives Kaiser

notice of his intent, to assess an administrative penalty against

Kaiser pursuant to H & S Code section 1386 in the amount of One

Million Dollars ($1,000,000.00).

Dated: May 12, 2000 WILLIAM KENEFICK

ACTING COMMISSIONER

By _____________________________

Rebecca G. Ruggero

Corporations Counsel

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WILLIAM KENEFICK (#59588)

Acting Commissioner of Corporations

G. LEWIS CHARTRAND, JR. (#124389)

Supervising Corporations Counsel

REBECCA G. RUGGERO (#165581)

Corporations Counsel

CALIFORNIA DEPARTMENT OF CORPORATIONS

980 9TH Street, Suite 500

Sacramento, CA 95814

Telephone: (916) 323-0435

Facsimile: (916) 323-0438

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CORPORATIONS

OF THE STATE OF CALIFORNIA

In the Matter of the Accusation

and Notice of Intent to Assess

Administrative Penalties Against

KAISER FOUNDATION HEALTH PLAN,

INC. (UTTERBACK)

Respondent

FILE NO: 933-0152

OAH NO:

STATEMENT TO RESPONDENT

STATEMENT TO RESPONDENT

Government Code Section 11505

Unless a written request for a hearing signed by or on

behalf of the person named as Respondent in the Accusation above is

delivered or mailed to the Department with fifteen (15) days after

the Accusation was personally served upon you or mailed to you, the

Commissioner may proceed upon the Accusation without a hearing. The

request for a hearing may be made by delivering or mailing the

attached form entitled Notice of Defense, or by delivering or mailing

a Notice of Defense as provided by Government Code section 11506 to:

Rebecca G. Ruggero. Corporations Counsel

Department of Corporations

980 9th Street, 5th Floor

Sacramento, California 95814

-41- Accusation

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You may, but need not, be represented by counsel at any or all steps

of these proceedings.

If you desire the names and addresses of witnesses or an

opportunity to inspect and copy the items mentioned in Government

Code section 11507.6 in the possession, custody or control of the

Department, you may contact:

Rebecca G. Ruggero, Corporations Counsel

Department of Corporations

980 9th Street, 5th Floor

Sacramento, California 95814

The hearing may be postponed for good cause. If you have good

cause, you are obliged to notify the Department within ten (10)

business days after you discover the good cause. Failure to notify

the Department within ten (10) days will deprive you of a

postponement.

Pursuant to Government Code section 11505, attached hereto are

copies of Government Code sections 11507.5, 11507.6, and 11507.7.

Dated: May 12, 2000 WILLIAM KENEFICK

ACTING COMMISSIONER

By ___________________________

Rebecca G. Ruggero

Corporations Counsel

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California Government Code sections 11507.5 through 11507.7

section 11507.5. Exclusivity of discovery provisions

The provisions of Section 11507.6 provide the exclusive right to

and method of discovery as to any proceeding governed by this

chapter.

section 11507.6. Request for discovery

After initiation of a proceeding in which a respondent or other

party is entitled to a hearing on the merits, a party, upon written

request made to another party, prior to the hearing and within 30

days after service by the agency of the initial pleading or within 15

days after the service of an additional pleading, is entitled to (1)

obtain the names and addresses of witnesses to the extent known to

the other party, including, but not limited to, those intended to be

called to testify at the hearing, and (2) inspect and make a copy of

any of the following in the possession or custody or under the

control of the other party:

(a) A statement of a person, other than the respondent, named in

the initial administrative pleading, or in any additional pleading,

when it is claimed that the act or omission of the respondent as to

this person is the basis for the administrative proceeding;

(b) A statement pertaining to the subject matter of the proceeding

made by any party to another party or person;

(c) Statements of witnesses then proposed to be called by the

party and of other persons having personal knowledge of the acts,

omissions or events which are the basis for the proceeding, not

included in (a) or (b) above;

(d) All writings, including, but not limited to, reports of

mental, physical and blood examinations and things which the party

then proposes to offer in evidence;

(e) Any other writing or thing which is relevant and which would

be admissible in evidence;

(f) Investigative reports made by or on behalf of the agency or

other party pertaining to the subject matter of the proceeding, to

the extent that these reports (1) contain the names and addresses of

witnesses or of persons having personal knowledge of the acts,

omissions or events which are the basis for the proceeding, or (2)

reflect matters perceived by the investigator in the course of his or

her investigation, or (3) contain or include by attachment any

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statement or writing described in (a) to (e), inclusive, or summary

thereof.

For the purpose of this section, "statements" include written

statements by the person signed or otherwise authenticated by him or

her, stenographic, mechanical, electrical or other recordings, or

transcripts thereof, of oral statements by the person, and written

reports or summaries of these oral statements.

Nothing in this section shall authorize the inspection or copying

of any writing or thing which is privileged from disclosure by law or

otherwise made confidential or protected as the attorney's work

product.

section 11507.7. Motion to compel discovery; Order

(a) Any party claiming the party's request for discovery pursuant

to Section 11507.6 has not been complied with may serve and file with

the administrative law judge a motion to compel discovery, naming as

respondent the party refusing or failing to comply with Section

11507.6. The motion shall state facts showing the respondent party

failed or refused to comply with Section 11507.6, a description of

the matters sought to be discovered, the reason or reasons why the

matter is discoverable under that section, that a reasonable and good

faith attempt to contact the respondent for an informal resolution of

the issue has been made, and the ground or grounds of respondent's

refusal so far as known to the moving party.

(b) The motion shall be served upon respondent party and filed

within 15 days after the respondent party first evidenced failure or

refusal to comply with Section 11507.6 or within 30 days after

request was made and the party has failed to reply to the request, or

within another time provided by stipulation, whichever period is

longer.

(c) The hearing on the motion to compel discovery shall be held

within 15 days after the motion is made, or a later time that the

administrative law judge may on the judge's own motion for good cause

determine. The respondent party

shall have the right to serve and file a written answer or other

response to the motion before or at the time of the hearing.

(d) Where the matter sought to be discovered is under the custody

or control of the respondent party and the respondent party asserts

that the matter is not

a discoverable matter under the provisions of Section 11507.6, or is

privileged against disclosure under those provisions, the

administrative law judge may order lodged with it matters provided in

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98-126, RGR

subdivision (b) of Section 915 of the Evidence Code and examine the

matters in accordance with its provisions.

(e) The administrative law judge shall decide the case on the

matters examined in camera, the papers filed by the parties, and such

oral argument and additional evidence as the administrative law judge

may allow.

(f) Unless otherwise stipulated by the parties, the administrative

law judge shall no later than 15 days after the hearing make its

order denying or granting the motion. The order shall be in writing

setting forth the matters the moving party is entitled to discover

under Section 11507.6. A copy of the order shall forthwith be served

by mail by the administrative law judge upon the parties. Where the

order grants the motion in whole or in part, the order shall not

become effective until 10 days after the date the order is served.

Where the order denies relief to the moving party, the order shall be

effective on the date it is served.

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WILLIAM KENEFICK (#59588)

Acting Commissioner of Corporations

G. LEWIS CHARTRAND, JR. (#124389)

Supervising Corporations Counsel

REBECCA G. RUGGERO (#165581)

Corporations Counsel

CALIFORNIA DEPARTMENT OF CORPORATIONS

980 9TH Street, Suite 500

Sacramento, CA 95814

Telephone: (916) 323-0435

Facsimile: (916) 323-0438

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CORPORATIONS

OF THE STATE OF CALIFORNIA

In the Matter of the Accusation

and Notice of Intent to Assess

Administrative Penalties Against

KAISER FOUNDATION HEALTH PLAN,

INC. (UTTERBACK)

Respondent

FILE NO: 933-0152

OAH NO:

NOTICE OF DEFENSE

TO: THE COMMISSIONER OF CORPORATIONS

ATTENTION: REBECCA G. RUGGERO

980 9th Street, Suite 500

Sacramento, CA 95814

YOU ARE NOTIFIED THAT, pursuant to section 11506 of the California Government Code, a hearing is requested in this matter.

Respondent requests a hearing to contest the proposed assessment ofadministrative penalty.

(Name)
(Street Address)
(City, State, Zip code)
 
 

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BEFORE THE DEPARTMENT OF CORPORATIONS

OF THE STATE OF CALIFORNIA

In the Matter of

KAISER FOUNDATION HEALTH PLAN,

INC. (UTTERBACK)

)

)

)

)

)

File No.: 98-126

CEASE AND DESIST ORDER

To: KAISER FOUNDATION HEALTH PLAN, INC.

1800 HARRISON STREET, 8TH FLOOR

OAKLAND, CA 94612

Health and Safety Code ("H & S Code") section 1391(a)(1) states

in relevant part:

The commissioner may issue an order directing a plan,

solicitor firm, or any representative thereof, a

solicitor, or any other person to cease and desist

from engaging in any act or practice in violation of

the provisions of this chapter, any rule adopted

pursuant to this chapter, or any order issued by the

commissioner pursuant to this chapter.

Based on the facts set forth in the attached Exhibit A, the

Statement of Facts, incorporated herein as if set forth in full, the

Commissioner finds that Kaiser Foundation Health Plan, Inc.

(hereinafter "Kaiser") has violated the following provisions of the

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Knox-Keene Act1 and the California Code of Regulations Title 10,

Chapter 32.

I.

A. ACCESS TO CARE

H & S Code section 1367(e)(1) states:

All services shall be readily available at reasonable

times to all enrollees. To the extent feasible, the

plan shall make all services readily accessible to all

enrollees.3

H & S Code section 1367(f) states:

The plan shall employ and utilize allied health

manpower for the furnishing of services to the extent

1 H & S Code section 1340 et seq.

2 Although the incident occurred in 1996 and some of the violations occurred as

early as 1996, the code sections and the regulations for the current year are

being cited as they do not differ substantively from the ones that were in effect

in 1996, 1997, 1998, and 1999, unless otherwise noted.

3 10 CCR section 1300.67.2 states:

Within each service area of a plan, basic health care services and

specialized health care services shall be readily available and accessible

to each of the plan's enrollees;

(a) The location of facilities providing the primary health care services

of the plan shall be within reasonable proximity of the business or

personal residences of enrollees, and so located as to not result in

unreasonable barriers to accessibility.

(b) Hours of operation and provision for after-hour services shall be

reasonable;

(c) Emergency health care services shall be available and accessible within

the service area twenty-four hours a day, seven days a week;

(d) The ratio of enrollees to staff, including health professionals,

administrative and other supporting staff, directly or through

referrals, shall be such as to reasonably assure that all services

offered by the plan will be accessible to enrollees on an appropriate

basis without delays detrimental to the health of the enrollees. There

shall be at least one full-time equivalent physician to each one

thousand two hundred (1,200) enrollees and there shall be approximately

one full-time equivalent primary care physician for each two thousand

(2,000) enrollees, or an alternative mechanism shall be provided by the

plan to demonstrate an adequate ratio of physicians to enrollees.

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permitted by law and consistent with good medical

practice.

As set forth in Exhibit A, the Statement of Facts, Kaiser

has denied access to care.

B. CONTINUITY OF CARE

H & S Code section 1367(d) states:

The plan shall furnish services in a manner providing

continuity of care and ready referral of patients to

other providers at times as may be appropriate consistent

with good professional practice.

As set forth in Exhibit A, the Statement of Facts, Kaiser has

failed to provide continuity of care.

C. PREVENTIVE CARE

H & S Code section 1345(b)(5) states as follows:

As used in this chapter:

(b) "Basic health care services" means all of the following:

* * *

(5) Preventive health services.

H & S Code section 1367(i) states as follows:

Each health care service plan contract shall provide

to subscribers and enrollees all of the basic health

care services included in subdivision (b) of Section

1345…

H & S Code section 1367.69(b) states as follows:

For purposes of this section, the term "primary care

physician" means a physician, as defined in section 14254

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of the Welfare and Institutions Code, who has the

responsibility for providing initial and primary care to

patients, for maintaining the continuity of patient care,

and for initiating referral for specialist care. This

means providing care for the majority of health care

problems, including, but not limited to, preventive

services, acute and chronic conditions and psychosocial

issues.

10 CCR section 1300.67 states:

The basic health care services required to be provided by

a health care service plan to its enrollees shall include:

(f) Preventive health services (including services for

the detection of asymptomatic diseases), which shall

include, under a physician's supervision,

(1) reasonable health appraisal examinations on a periodic

basis;…

* * *

(8) effective health education services, including information

regarding personal health behavior and health care, and

recommendations regarding the optimal use of health care

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services provided by the plan or health care organization

affiliated with the plan.4

As set forth in the Statement of Facts, Kaiser has failed to

provide preventive care.

D. EMERGENCY CARE

H & S Code section 1345(b)(6) states as follows:

As used in this chapter:

(b) "Basic health care services" means all of the following:

* * *

(6) Emergency health care services, including

ambulance and ambulance transport services…"Basic

health care services" includes ambulance and

ambulance transport services provided through the

"911" emergency response system.

H & S Code section 1367(i) states as follows:

Each health care service plan contract shall provide

to subscribers and enrollees all of the basic health

4 With regard to the plan’s continuing obligation to engage in a Quality Assurance

program, 10 CCR section 1300.70(b)(2)(G) imposes the following obligation on

health care service plans:

(5) Ensure that for each provider the quality assurance/utilization

review mechanism will encompass provider referral and specialist care

patterns of practice, including an assessment of timely access to

specialists, ancillary support services, and appropriate preventive

health services based on reasonable standards established by the plan

and/or delegated providers.

(6) Ensure that health services include appropriate preventive health

care measures consistent with professionally recognized standards of

practice. There should be screening for conditions when

professionally recognized standards of practice indicate that

screening should be done.

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care services included in subdivision (b) of Section

1345…

10 CCR section 1300.67 states:

Scope of Basic Health Care Services

The basic health care services required to be provided

by a health care service plan to its enrollees shall

include, where medically necessary, subject to any

copayment, deductible, or limitation of which the

Commissioner may approve:

(g) Emergency health care services which shall be

available and accessible to enrollees on a twentyfour

hour a day, seven days a week, basis within the

health care service plan area. Emergency health care

services shall include ambulance services for the

area served by the plan to transport the enrollee to

the nearest twenty-four hour emergency facility with

physician coverage, designated by the Health Care

Service Plan.

10 CCR section 1300.67.2 states:

Accessibility of Services

Within each service area of a plan, basic health care

services and specialized health care services shall be readily

available and accessible to each of the plan's enrollees;

* * *

(c) Emergency health care services shall be available and

accessible within the service area twenty-four hours

a day, seven days a week.

As set forth in Exhibit A, the Statement of Facts, Kaiser has

failed to provide emergency care.

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E. MEDICAL RECORD AVAILABILITY

H & S Code section 1367(g) states:

The plan shall have the organizational and administrative

capacity to provide services to subscribers and enrollees.

10 CCR 1300.67.1 states:

Within each service area of a plan basic health care

services shall be provided in a manner which provides

continuity of care, including but not limited to:

(c) The maintenance and ready availability of medical

records, with sharing within the plan of all

pertinent information relating to the health care of

each enrollee.

As set forth in Exhibit A, the Statement of Facts, Kaiser has

failed to provide availability of medical records.

II.

KAISER’S VIOLATIONS OF THE KNOX-KEENE ACT

Based on the foregoing, the Commissioner finds that the Plan

has violated H&S Code sections 1345(b)(5) and (6), 1367(d),

1367(e)(1) and 1367(f), 1367(g), 1367(i), 1367.69(b). In addition

the Commissioner finds that the plan has violated Title 10, CCR

sections 1300.67(f) and (g), 1300.67.1(c), 1300.67.2(a), (b), (c)

and (d), and 1300.70(b)(2)(G).
 
 

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III.

THE DEPARTMENT’S ORDER

THEREFORE, pursuant to H&S Code section 1391, THE COMMISSIONER


HEREBY ORDERS KAISER FOUNDATION HEALTH PLAN, INC., TO CEASE AND
DESIST from the following:

1. Failing to ensure that subscribers and enrollees receive
available and accessible health and medical

services rendered in a
manner providing continuity of care, as set forth in detail above, at the Kaiser facilities

located at 27303 Sleepy Hollow, Hayward,
California 94545 including, but not limited to, the Point Eden

Clinic located off-site, hereinafter referred to as "Kaiser Hayward
medical facility";

2. Failing to provide basic health care services including
providing preventive care and emergency services, as

set forth in
detail above, at the Kaiser Hayward medical facility; and

3. Failing to demonstrate that the plan has the
organizational and administrative capacity to provide services to

enrollees, including the maintenance and ready availability of
medical records, as set forth in detail above, at

the Kaiser Hayward
medical facility.


This order shall be EFFECTIVE IMMEDIATELY and shall continue in full force and effect UNTIL FURTHER ORDER OF THE COMMISSIONER.

Dated: May 12, 2000, at Sacramento, California

WILLIAM KENEFICK

ACTING COMMISSIONER OF CORPORATIONS

By___________________________

G. Lewis Chartrand, Jr.

Supervising Corporations Counsel

Health Plan Enforcement Division

-1- Exhibit A to Cease & Desist Order

98-126, RGR

EXHIBIT A

STATEMENT OF FACTS

A. MARGARET UTTERBACK

1. In January 1996, Margaret Utterback, 74 years old, and a Kaiser patient for 50 years, was still living in her 

home. She took reasonably good care of herself and was in generally good health up to the day she went to 


Kaiser with back pain that radiated to the right side of her abdomen.


2. Her medical problems were few. She had suffered from
hypertension for more than 30 years. She also

suffered from minor
ailments such as arthritis in her feet and skin lumps on her arms which her physician

believed was sarcoidosis, a connective skin
disorder. However, she was diligent in getting medical care when

needed and carrying out follow-up visits.


3. Kaiser medical records indicate that Mrs. Utterback had been
a smoker since the 1940’s and was diagnosed

at Kaiser for
atherosclerosis. She quit smoking approximately 2 years before her

death in January 1996.


4. Mrs. Utterback had a family history of high blood pressure
and arteriosclerosis. During all relevant times,

medical records
indicate that Kaiser was aware of this family medical history.

B. ABDOMINAL AORTIC ANEURYSMS


5. An abdominal aortic aneurysm ("AAA") develops when weakness
in the wall of the aortic artery causes the

vessel to swell.


Rupture or threatened rupture of an abdominal aneurysm is a surgical
emergency. If the vessel bursts, the

patient can bleed to death in
a short period of time.

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6. The condition normally takes many years to develop.

Typically, a developing aortic aneurysm will increase its diameter at a rate of approximately 0.5 c.m. per year.


7. Most cases of AAA are caused by arteriosclerosis. Moreover,smoking and hypertension are clear contributing factors to

the formation of aortic aneurysms. Hypertension is one of the most
common conditions which increases the stress of the

aortic wall.


8. For a patient who is asymptomatic, the diagnosis may first be
suspected by an x-ray of the chest or abdomen, which will

demonstrate a curvilinear calcification in the wall of the aneurysm.

The diagnosis is confirmed by an ultrasound.


9. Generally, a symptomatic patient with AAA is an older person who complains of abdominal pain and back pain. AAA’s

impinge on the
lumbar vertebrae which is often responsible for lower back pain.

10. Surgery prolongs life by preventing rupture of the
aneurysm. Symptomatic or expanding aneurysms should have

prompt
surgical correction.

11. Some patients with ruptured aneurysms survive long enough
to become candidates for emergency surgical repair.

These patients
will usually present in shock and have severe pain in their abdomen, lower back, or both. A tender pulsatile

mass may be palpated. The
survival rate with emergency surgery in these circumstances is about

50 percent.

C. THE MORNING OF JANUARY 26, 1996 AND MRS. UTTERBACK’S CALLS TO

KAISER

12. On January 26, 1996, Mrs. Utterback woke up with pain in her back which radiated toward her abdomen on the right

side. She
had been experiencing back pain since the day before and thought the pain was due to stiffness from previously

sitting in a hard chair.
The pain progressed that morning. She also experienced abdominal pain that she attributed to

shellfish she had eaten the previous
night.

13. At approximately 8:15 a.m., Mrs. Utterback called her daughter, Barbara Winnie, and asked her to come over because

she had
experienced a sharp pain while coming out of her bathroom that morning.

14. When Mrs. Winnie arrived at approximately 9:30 a.m., she found her mother in bed, still in her pajamas. Although

uncomfortable, Mrs. Utterback was not feeling the sharp pain that
she had experienced earlier.

15. She reported to her daughter that she had tried reaching
her primary care physician at Kaiser, Rod Perry, M.D., when

the
clinic opened at 8:30 a.m., and was on hold for so long that she decided to hang up. The phone number that Mrs.

Utterback used to
secure an appointment came from her address book under "Rod Perry."5

16. Between 9:45 a.m. and 10:00 a.m., Mrs. Utterback tried to
call Kaiser again. Mrs. Winnie overheard this conversation

and was
also informed of the details of the conversation afterwards. Mrs. Winnie essentially recalls this call as follows:

5 The phone number for Dr. Perry previously was for his clinic directly, but later
was "rolled-over" to the Hayward phone

center that consisted of 5 to 6 different
rooms of medical assistants ("M.A.’s") and/or registered nurses ("R.N.’s") at

another Kaiser location. In other words, even though Mrs. Utterback used the
phone number that had once been assigned

to Dr. Perry, her call could be answered
by any number of M.A.’s in a completely different building. In fact, the phone

number could no longer connect Mrs. Utterback with Dr. Perry at Medical Station 6
in Point Eden Clinic. All calls went to

one of many phone rooms in the Kaiser
Hayward Hospital that was approximately 2 miles from Dr. Perry at Point Eden

Clinic, most of which were operated and occupied by medical assistants.


17. Mrs. Utterback explained her symptoms, that she was having pain on the right side of her back that was radiating to

her
abdomen, and asked if she could get an appointment to see her doctor. She was told by the person who answered the

phone that
there were no appointments available. Mrs. Utterback explained her symptoms again and asked if she could

be put through to her doctor
or the clinic so she could talk to someone there, but the person on the other end of the phone

said that she could not do that. After
that, the person said something to the effect that, "If you think that you need to be

seen, call back at 3:00 p.m. and get an urgent
care appointment for that evening." Mrs. Utterback was told that the urgent

care clinic was the procedure to be used when there were
no same day appointments available with her doctor.

18. After hanging up, Mrs. Utterback and Mrs. Winnie discussed
the conversation and Mrs. Utterback decided to call back.

Mrs.
Utterback described her symptoms again to the new person who answered the phone, i.e., right side back pain that

was radiating to
her abdomen. After being transferred a couple of times, she finally was put in contact with someone whom

Mrs. Utterback thought was kind
and willing to listen. This particular woman offered to send an email message to Mrs.

Utterback’s physician, Dr. Perry, about her
wanting to be seen that day. Mrs. Utterback understood that once the e-mail

was sent, she was to wait for her doctor to get back to
her. Mrs. Winnie recalls that this conversation occurred at

approximately 10:15 a.m. which is consistent with the time that the
e-mail6 was actually sent at 10:18 a.m.

19. Mrs. Utterback was not given an appointment during this


conversation.

D. THE FIRST LONG WAIT

20. While waiting to hear back from Dr. Perry’s office, Mrs.

Utterback reclined almost the whole time, but did get up at around

12:00 noon to have some soup that her daughter prepared for her.

After not hearing back for nearly two hours, the two of them agreed

that they would surely hear from Dr. Perry either during lunch or

right after the lunch hour. However, when 1:45 p.m. arrived, Mrs.

Utterback and her daughter agreed that "Enough is enough" and tried

to call back to find out what, if anything, Dr. Perry had decided to

do.

21. Mrs. Utterback called and explained to the person who

answered the phone this time the steps she had taken up to this

point in order to be seen by Dr. Perry. She again explained that

6 The actual e-mail message that was sent by a medical assistant is considered

an official medical record which Kaiser has consistently failed to produce. Email

messages are usually sent to the patient’s physician for him or her to decide

what to do. The medical assistant sends the message from whatever phone room she

is in, and it prints out at the physician station in hard copy on pink paper.

Once the disposition is written on the hard copy of the e-mail message, this

document is filed in the medical chart as an official medical record. E-mail

messages are kept on the computer system for two weeks (and backed-up for 90

days). Even though the Utterback family members came to Kaiser to complain about

the needless death of their mother before the two week period expired, no one

seems to be able to find the message nor does it appear that an extra copy was

printed within that two week period.

Mally Monton, M.A., the person who sent the message at 10:18 a.m. on January 26,

1996 had the opportunity to copy the message, verbatim, while she was questioned

about the contents of it less than two weeks after the incident. This is the only

copy of the message the Department has been able to obtain. The copy from which

Ms. Monton wrote down the contents of the message was inexplicably thrown away in

the trash moments later by her supervising nurse.

-6- Exhibit A to Cease & Desist Order

98-126, RGR
 
 

she had right back pain radiating to her abdomen, which was getting

more painful. She reiterated her efforts to see Dr. Perry and her

symptoms as she was transferred several times. She also explained

that she was frustrated, wanted a same day appointment and had been

waiting to hear from Dr. Perry since 10:00 a.m. that morning.

22. After speaking to several different people, it appeared to

Mrs. Winnie that her mother had finally reached someone sympathetic

based on the tone of Mrs. Utterback’s voice. Apparently, this

person offered to transfer Mrs. Utterback to "Patient Assistance."

However, when that transfer occurred, Mrs. Utterback reached a voice

mail recording so decided to hang up.

23. Mrs. Utterback immediately called back the phone bank one

more time, and after explaining her symptoms and all her futile

attempts to get assistance again, she finally, after several

attempts, reached a person who was able to get her scheduled for an

appointment at 4:15 p.m.7 However, Mrs. Utterback had to insist on

being seen that day because the medical assistant, at first, told

Mrs. Utterback that Dr. Perry declined giving her an appointment

7 At all times, according to Kaiser’s own records, Mrs. Utterback never was

connected to a registered nurse nor instructed to go to the emergency room. There

is no evidence that Mrs. Utterback was offered an appointment with another

physician. In fact, it was in violation of Kaiser’s own appointment guidelines to

have offered Mrs. Utterback an appointment with another physician.

Most important, however, is that it is not unreasonable for a patient to want to

see her own doctor. This value is reflected in the Knox-Keene Act where it

assures that subscribers and enrollees receive available and accessible health and

medical services rendered in a manner providing continuity of care (H & S Code

section 1367(d) and 10 CCR section 1300.67.1(a) (c), (d), and (e)). Seeing one’s

own physician who is familiar with one’s medical history is not to be minimized.

For example, in Mrs. Utterback’s case, a physician who is aware of her history of

high blood pressure, her smoking habits, her family history of deaths related to

arteriosclerosis and her own history of atherosclerosis, coupled with Mrs.

Utterback’s clear descriptions of symptoms that day, could have been armed with

the information necessary to recognize that AAA was certainly a strong

possibility.

that day, but opted to write her a prescription for narcotic pain

medicine instead8. Finally, upon Mrs. Utterback's insistence, the

medical assistant agreed to give her an appointment late in the day.

24. Mrs. Utterback and her daughter decided to go immediately to the clinic in order to try to get in to see Dr. Perry sooner

if
possible. This is corroborated by Kaiser employee Kali Bell, the medical assistant who booked the appointment at Dr.

Perry’s station,
who recalls that the daughter told her that they were leaving right away to try to get worked in sooner that

day.

E. MRS. UTTERBACK’S CONTACT WITH MEDICAL PROFESSIONALS PRIOR TO

ARRIVING AT THE CLINIC AND THE FAILURE TO FOLLOW APPOINTMENT

GUIDELINES

25. Until arriving at the clinic, Mrs. Utterback never spoke to a registered nurse and/or "advice" nurse9 nor was she

instructed
to go to the emergency room by any Kaiser personnel.

26. Dr. Perry was the only licensed medical professional who
knew of and/or otherwise had access to Mrs. Utterback’s

medical
history, knew of Mrs. Utterback’s symptoms stated in the e-mail message and her desire to be seen that day, yet

his response was to prescribe Mrs. Utterback a narcotic pain medication.

F. THE LONG WAIT AT THE KAISER CLINIC

27. Mrs. Utterback left after 2:00 p.m. and checked in no later than 2:45 p.m.10 at the Kaiser Point Eden clinic. Despite

8 The prescription was written either for Tylenol with codeine or Vicodin. The
actual prescription is also missing.

9 Advice nurses are registered nurses ("R.N.s").
requesting three separate times to be seen sooner because her pain

was worsening, staff at Kaiser refused. While waiting, Mrs.
Utterback’s pain increased to the point where her discomfort

was
visually observable. She squirmed in her chair and held onto her side. At all times, Mrs. Utterback was in plain view of

the
reception desk and the open hallway where the medical assistants would come out to call patients into the back. Not

until 4:30 p.m.
did Dr. Perry examine her, 15 minutes after her appointment time.

28. At one point, the medical assistant who was "rooming11" for
Dr. Perry’s patients that day, Fatima Mehrzad, was

informed of Mrs.
Utterback’s desire to be put in a room. Two Kaiser receptionists testified that Ms. Mehrzad came out to

the front, glanced through
Mrs. Utterback’s chart12, looked out into the waiting room where she was sitting and stated,

"She doesn’t look that sick to me" tossed
the chart back and walked away.

G. THE RAPID DIAGNOSIS

29. Once examined by Dr. Perry, he immediately diagnosed Mrs.
Utterback with a dissecting13 abdominal aortic

aneurysm ("AAA"). The
x-ray report at the time of rupture indicated that the aneurysm was at least 10 c.m. in diameter.

30. A dissecting AAA is a life-threatening condition that
requires complete adherence to a stringent set of protocols in

order


10 Kaiser records indicate that Mrs. Utterback checked in at 3:32 p.m. The actual
check-in time is still in dispute.

11 "Rooming" means placing patients into a physician’s assigned exam room.


12 The "chart" is what the clinic puts together in the absence of being able to
obtain the actual medical chart from the chart

room which requires several hours
notice. The information available to the rooming medical assistant is the

patient’s name, age, address, Kaiser medical number, reason for being seen and the
appointment time. to save the

patient’s life. Pre-hospital treatment consists of
relief of pain (morphine sulfate is recommended if diagnosis is

strongly suspected), immediate transport to hospital, decreasing the
anxiety of the patient, gentle handling of patient,

oxygen
administration, initiation of two large bore IV’s and cardiac monitoring.

31. However, instead of calling "911", or arranging for
Advanced Life Support ("ALS")14 to the Kaiser Hayward Hospital,

Dr.
Perry initially thought that Mrs. Utterback and her daughter should drive themselves to the emergency room. After

speaking to personnel
in the emergency room at Kaiser Hayward Hospital, he decided to have the R.N. on staff order

Basic Life Support ("BLS"), as opposed to
ALS, for the transfer. At the same time, Dr. Perry failed to follow

even the simplest of standard AAA protocols, such as starting IV’s
and oxygen and/or and administering pain medication

to keep Mrs.
Utterback calm.

32. Lynnel Schexnayder, R.N. testified that she asked Dr.
Perry on two occasions before arrival of the transport vehicle

whether he wanted her to start an IV. Both times Dr. Perry said no.
He even declined Ms. Schexnayder’s suggestion to put

Mrs. Utterback
on a cardiac monitor.

13 Dissecting AAA means that the aorta was already splitting apart.


14 In the ambulance/emergency services system, "Advanced Life Support" arrives the
fastest, thereby getting the patient

to the emergency room faster. It is also
staffed with medical professionals who are licensed to start IV’s, administer

oxygen and start cardiac monitoring. On the other hand, the other transport
choice is "Basic Life Support" which does not

arrive as fast, is not always
staffed with paramedics who are qualified to give the same level of care as the medical

professionals who are assigned to Advanced Life Support vehicles.


33. The seriousness Mrs. Utterback’s diagnosis and medical condition were not communicated to Hayward Fire

Department or to
ambulance personnel, American Medical Response ("AMR"). For example, Chief Michael Jay of

Hayward Fire Department, who had been
dispatched to the scene, was not informed that there was a diagnosis

of a dissecting AAA. Instead, he was informed by the clinic R.N.
that ":…the patient needed a transport…[and the patient]

was
complaining of lower back pain." Chief Jay stated that a diagnosis of a dissecting AAA indicates a sense of urgency

that would
necessarily need to be communicated by the medical facility to the emergency personnel on scene, including

himself. This was never
done.


34. This lack of urgency is confirmed in the ambulance report
where it states, "M.D. nowhere to be found. R.N. had very

little
pt. information. They just wanted pt. transferred to ? for evaluation."

35. Mrs. Utterback did not arrive at the emergency room until


5:31 p.m. — one hour after diagnosis. Mrs. Utterback’s aneurysm
ruptured only minutes after arriving at the emergency

room.

H. THE EFFECT OF KAISER’S FAILURE TO INSTIGATE STANDARD AAA

PROTOCOLS

36. At some point in time, the transport was eventually changed from BLS (what Dr. Perry ordered) to ALS which is the

type
of transport consistent with the life-saving measures set forth in standard AAA protocols. It is not clear who upgraded

the transport
from BLS to ALS, but it was not Dr. Perry or anyone in his clinic.

37. The transport vehicle arrived sometime between 5:14 p.m. and 5:18 p.m. after being dispatched at approximately 5:02

 p.m., at
least one-half hour after diagnosis. By then, Mrs. Utterback was in extreme pain and without any medication to

keep her calm. She was
thrashing about in the gurney in the ambulance. The medical personnel in the ambulance did start

oxygen, but were unable to get
even an assessment from Mrs. Utterback because she was "…very uncomfortable." IV’s

were attempted, but the ambulance crew was
unable to complete the task.

38. By the time Mrs. Utterback arrived in the emergency room, no IV’s had been placed and the emergency room nurses

struggled to
get IV’s started because by that time it was within minutes or seconds before rupture. Mrs. Utterback was

moving about so much in
pain that she simply was not able to lie still for the nurses.

I. THE RUPTURE AND THE EMERGENCY SURGERY

39. Only minutes after arriving at the emergency room, Mrs.
Utterback’s abdominal aorta ruptured and her blood pressure

"crashed". Mrs. Utterback was rushed to surgery as large volumes of
her blood were being emptied into her body. By the

time the five
hour surgery had ended, Mrs. Utterback had been given 24 pints of blood.

J. MRS. UTTERBACK’S LAST HOURS OF LIFE

40. Mrs. Utterback died one and a half days later in the CCU. Her last hours consisted of being hooked up to a heart-lung

machine
and undergoing extreme measures in order to attempt to raise her blood pressure. Her only communication with

her family was when she
squeezed her daughters’ hands to indicate that she was in pain (no
pain medications were administered to Mrs. Utterback in CCU until an hour or two before her death).

41. One of Mrs. Utterback’s legs had completely lost all circulation and was discolored and the other one was deteriorating

when a non-Kaiser, on-call physician finally took the family aside
and informed them that Mrs. Utterback had less than a

0.5% chance to
live, which shocked the family as no one had taken the time to explain Mrs. Utterback’s prognosis to the

family before that point.


Ironically, it was a non-Kaiser physician who took the time to
explain Mrs. Utterback’s prognosis and highly recommended

pain
medication in order to offer Mrs. Utterback a more comfortable death.

42. After further delays due to confusion in the physician's orders, Mrs. Utterback received her first dose of pain

medication
since surgery. Shortly after that, she died.

K. THE FAMILY’S FUTILE ATTEMPTS TO GET ANSWERS FROM KAISER THROUGH

ITS GRIEVANCE PROCESS

43. Soon after their mother’s death, the family attempted to get an explanation of what happened. They asked why their mother was not able to get an appointment sooner, why she was never triaged by a medical professional before Dr. Perry finally saw her at 4:30 p.m., why she was not seen sooner when she arrived early at the clinic and was in obvious pain, why it took so long to transport her to the emergency room after diagnosis and why the AAA protocols were not started in the clinic. To date, the family has not received a satisfactory explanation from Kaiser for any of these concerns.

-13- Exhibit A to Cease & Desist Order

98-126, RGR
 

44. On February 6, 1996, 12 days after Mrs. Utterback died,her three daughters met with an employee at Patient 

Assistance in Kaiser Hayward Hospital where they filed an initial complaint on behalf of the family. However, the family was told to provide a letter to Kaiser outlining its complaint, which was done by February

21, 1996. Mrs. Utterback's daughters also visited the functional unit manager for Medical Clinic 6, the clinic where Dr. Perry worked, as well as Dr. Perry himself.

45. Kaiser was on notice of the family’s complaint before the January 26, 1996 e-mail message was deleted from the computer system.15 This is important because later the message was never located even though Kaiser had notice that the facts and circumstances surrounding Mrs. Utterback’s death was an important issue to the family.

46. After not receiving acknowledgment from Kaiser for almost two months , on March 20, 1996, the family initiated a meeting with Kaiser physician, Paul H. Jewitt, M.D., Physician-in-Chief at Hayward.

47. On May 17, 1996, more than three months after their initial contact with Kaiser, the family received its first response from Kaiser. However, the response did not address all of the family’s questions. The response was a short letter which states:

This is a followup (sic) letter to our meeting regarding your concerns…I understand that our Intensive
Testimony revealed that e-mail messages were kept on the computer system for at least two weeks. Kaiser produced documents in this matter that indicate that email messages are backed-up and that Kaiser has at least 90 day retention of these files.

-14- Exhibit A to Cease & Desist Order

98-126, RGR

Care Services Manager, Ms. Celeste Farugia, has spoken with you regarding the concerns you had about your mother’s nursing care while in the hospital’s Intensive Care Unit here.

I have reviewed the concerns that you had with the
managers of our Internal Medicine Department and have spoken with Dr. Rod Perry regarding your concerns as well.

Again, let me express my personal sympathies on the
loss of your mother. I would also like to thank you for taking your time to let me know of your concerns.

48. On October 2, 1996 Mrs. Utterback's daughter Terry Preston again visited Kaiser's Patient Assistance and was unsuccessful in getting any further information regarding any investigation that was done regarding the family’s complaint. In fact, Patient Assistance had no information, no file and no reference to a complaint by Mrs. Utterback’s family. Despite promises to call back when information became available, Patient Assistance never contacted Mrs. Preston with a substantive response.

49. After filing a Request for Assistance ("RFA") with the Department of Corporations (the "Department") in September, 1996, Kaiser eventually responded to Mrs. Utterback’s family. In its October 15, 1996 letter, Kaiser's response was as follows:
* * *
…According to Dr. Perry, Mrs. Utterback had called earlier that day requesting an appointment with him. (It was noted that she preferred to see him personally rather then (sic) receiving treatment from either one of his colleagues or going directly to the Emergency Department.) Dr. Perry indicated that although his schedule was full, he would be able to see her at 4:15pm if she wished to wait; which was agreeable to the patient. She was registered and seen within 15 minutes of her scheduled time.

…Mrs. Utterback’s blood pressure was 120/90, her pulse was
110 and regular. She was afebrile and although she looked uncomfortable, there were no signs of acute stress…

…Dr. Perry…requested an ambulance for immediate transport
to the Emergency Department. The ambulance arrived within fifteen to twenty minutes of the call…It was noted that the patient was stable at the time of transport.

* * *


A thorough and intensive internal review was conducted regarding Ms. Utterback’s medical care…

50. This letter contains almost nothing but misstatements.
Mrs. Utterback did not just have abdominal pain: she had back pain that radiated to her abdomen; there is no evidence that Mrs. Utterback preferred to see only her physician rather than seeing a colleague or going to the emergency department; Dr. Perry did not arrange for the appointment, his medical assistant made the appointment on her own and later informed Dr. Perry that the reason an appointment was given was
because Mrs. Utterback "insist[ed]";
Mrs. Utterback was not registered and seen within 15 minutes of her appointment time, it was at least one hour; although there is an implication that Mrs. Utterback’s vital signs were stable, 120/90 for a blood pressure is not normal for a person who suffers from hypertension nor is a resting pulse of 110 considered normal; there is a dispute in facts whether Mrs. Utterback was exhibiting acute distress; Dr. Perry did not "suspect" a leaking aneurysm, he diagnosed Mrs. Utterback as having a dissecting abdominal aneurysm; Dr. Perry first thought that the family should drive themselves to the E.R. and later asked for a basic life support transport, as such, he did not order the most "immediate" transport available; and finally, regarding the assertion that a "thorough and intensive internal review was conducted regarding the quality of Ms. Utterback’s medical care", this investigation itself puts at issue Kaiser’s failure to thoroughly investigate this matter.

51. Lastly, in this letter a phone number for the family to reach
the author of the letter—or any other Kaiser person--to discuss the contents was noticeably missing. This precluded the family from contacting anyone in the event of further questions, although the family did try, unsuccessfully, to reach the letter’s author, Elaine Strahlendorf

Health & Safety Code 1391.

Cease and Desist Orders; Hearing; Stay; Request by Unlicensed Plan.

Operative until the earlier of the establishment of the Department

of

Managed Care or July 1, 2000.

(a)(1) The commissioner may issue an order directing a plan, solicitor firm, or any representative thereof, a solicitor, or any other person to cease and desist from engaging in any act or practice in violation of the provisions of this chapter, any rule adopted pursuant to this chapter, or any order issued by the commissioner pursuant to this chapter.

(2) If the plan, solicitor firm, or any representative thereof,
or solicitor, or any other person fails to file a written request

for a hearing within one year from the date of service of the order,
the order shall be deemed a final order of the

commissioner and
shall not be subject to review by any court or agency,notwithstanding subdivision (b) of Section 1397.

(b) If a timely request for a hearing is made by a licensed
plan, the request shall automatically stay the effect of the order

only to the extent that the order requires the cessation of
operation of the plan or prohibits acceptance of new members by

the
plan or both. However, no automatic stay shall be issued if any examination or inspection of the plan performed by the

commissioner
discloses, or reports or documents submitted to the commissioner by the plan on their face show, that the

plan is in violation of any
fiscal requirement of this chapter or in violation of any requirement of Section 1384 or 1385. In the

event of an automatic
stay, only that portion of the order requiring cessation of operation or prohibiting enrollment shall be

stayed and all other
portions of the order shall remain effective. If a hearing is held, and a finding is made that the health or

safety of the members and
potential members of the plan might be adversely affected by its continued operation, the stay

shall be terminated. This finding
shall be made, if at all, not later than 30 days after the date of the hearing.

(c) If a timely request for a hearing is made by an unlicensed plan, the commissioner may stay the effect of the order to the

extent that the order requires the cessation of operation of the plan or prohibits acceptance of new members by the plan, 


for that period and subject to those conditions that the commissioner may require, upon a determination by the 


commissioner that the action
would be in the public interest.


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