One of the first court cases under Texas' HMO liability statute could result in a reduced financial judgment against a medical group found liable for a patient's death.
A jury last month returned a $1.1 million verdict against Consultants in Cardiology, a 13-physician Fort Worth group practice, in a wrongful-death case brought in part under the 1997 law, the first of its kind in the nation. The jury cleared the senior practicing member of the group, Billie Pugh, M.D., of any liability.
The insurer, Hartford, Conn.-based Cigna Corp., settled its suit with the plaintiffs before the court could rule. Terms of the Cigna settlement are confidential, but several sources estimated the insurer agreed to pay from $554,000 to $704,000 to avoid a jury verdict. The Feb. 23 settlement came during the jury selection process.
Judge Thomas Wilson Love III of the state's 236th Judicial Circuit in Tarrant County still must decide whether to accept the jury verdict in the case against the medical group.
Lawyers connected with the case say it is possible that Consultants in Cardiology may not have to pay a cent in damages to the plaintiffs, Charles Barley, husband of the late Janet Barley, and his son, Charles Justin Barley.
The jury found the group only 50% responsible for Janet Barley's September 1997 death; jurors decided Barley was equally responsible.
Based on this split, "It's uncontroverted that the assessment will be reduced by 50%," says Michael Wallach, attorney for the practice.
Geno Borchardt, who represents the Barley family, agrees. "That is what the judge will probably do," says Borchardt, a partner in the Fort Worth firm of Barkholtz, Boehme & Borchardt. If so, the practice would be liable for $553,518, or one-half of the jury award.
Wallach says he expects Love to apply the Cigna settlement toward the medical group's share of the damages. According to Wallach, the settlement is large enough to wipe out a $553,518 judgment against the medical group, but the practice would have to pay the difference if interest is added.
Wallach filed a motion for judgment on March 14, but Love has not set a hearing date. Even if the judge halves the award to reflect the split liability, he must decide whether to add about $150,000 worth of interest the Barleys seek.
The jury awarded $1.1 million for actual damages and $7,036 to cover funeral and burial expenses. Texas liability law does not permit juries to award punitive damages.
Cigna officials declined to comment on the case.
Regardless of the outcome, Rocky Wilcox, general counsel for the Texas Medical Association, says he believes that the HMO law is serving its purpose. "If you didn't have the HMO liability bill, the whole action would have been against the doctor and the doctor group," he says.
According to court documents, Janet Barley, 46, died of congestive heart failure three days after Pugh prescribed a drug for symptoms of valvular heart disease.
Barley called his office later because her symptoms were worsening; a nurse told her to double the dose of medication.
The plaintiffs say Barley was unable to get an appointment because the HMO referral from her primary care physician had expired. They charge that the practice refused care because HealthSource North Texas, which Cigna bought in 1998, allegedly withheld 10% of its payments to providers until the end of the year as an incentive to reduce costs.
Consultants in Cardiology and Pugh deny that HMO restrictions had any effect on their actions.