Family Who Helped End ‘Drive Through Deliveries’ Returns to Sue HMO for Daughter’s Death
Steve and Michelle Bauman, the New Jersey couple who helped end "drive through" deliveries by HMOs after the death of their two-year-old daughter, Michelina, have embarked on a new "crusade" with a lawsuit against Aetna U.S. Healthcare for the HMO's former policy of discharging newborns from hospitals one day after birth, the AP/Washington Post reports. The Baumans claim that the policy led to the death of their daughter in May 1995 and contend that an HMO nurse scheduled to visit their daughter the day after her discharge "never came" and that their doctor, also a defendant, told them "not to worry" about the baby's moaning, strange rash and other symptoms. The Post reports that the Baumans' testimony to Congress and the New Jersey Legislature about the death of their daughter "led to a federal law and many state laws requiring a minimum 48-hour stay for newborns and their mothers."
Cracking the 'Shield'
Through the lawsuit, the Baumans hope to "crack the shield" of the 1974 Employee Retirement Income Security Act -- a provision that limits state court actions against benefit plans, even in cases of wrongful death or injury -- which HMOs often use to fend off lawsuits. In June, the U.S. Supreme Court ruled that the couple could sue Aetna in state court, rather than federal court, where plaintiffs can only recover damages equal to the cost of care denied. According to the AP/Washington Post, HMOs have often moved state malpractice lawsuits to federal court to avoid large judgments. "Our case is one of the few cases, and the only one that's gone through a federal appeals court, where we're challenging HMO policies that cause malpractice to occur. It has already ... opened up (the way for) more of these cases," Josh Spielberg, the Bauman's lawyer, said. "The ultimate thing we're looking for is ... making it safer for other newborns and their mothers," Steve Bauman said, adding, "Somebody's got to be held accountable so they know they can't get away with this anymore." Aetna denies any legal liability, arguing that the Bauman's physician made "all care decisions." Although Congress has stalled on the issue of patients' rights and their ability to sue HMOs, seven states have passed such laws since 1997, according to Molly Stauffer of the National Conference of State Legislatures (Johnson, Washington Post, 12/4).