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Some Kaiser patients said they were told the policy was mandatory, and they'd been unable to get the proper dosage of their meds despite complaints. Others failed to challenge the practice because they assumed they were required to cut their tablets in half. Still others were unaware that they could get the dosages they needed straight from the bottle.
Livermore's Charles Folker, a retired engineer and Kaiser member, says his complaints about not wanting to split his cholesterol-lowering medication went nowhere. "There was no arguing with the pharmacist and there was no way to get out of it," he says. "When I complained, I was told that was the way they do it at Kaiser."
Eventually, Metz and Phillips convinced Trial Lawyers for Public Justice, a nonprofit public-interest law firm with an office in Oakland, to file a class-action suit against Kaiser, the oldest and largest HMO in the country. Phillips, Metz, Yarborough, Cargile, and other Kaiser patients around the state signed on as plaintiffs.
"It seemed to us that this was a clear example of an HMO putting money before its patients' health, because there was no medical justification for the policy and it was clear cost-cutting," recalls Victoria Ni, one of the lead attorneys on the case. "Our position is there have been no studies to determine the health effects of splitting tablets and the onus shouldn't be on the consumers to establish health risks."
In December of 2000, Trial Lawyers for Public Justice filed a class-action lawsuit against Kaiser Permanente in Alameda County Superior Court. Other lawyers around the country signed on to help the group litigate its case. "It is hard to imagine a more blatant consumer fraud," wrote fellow plaintiff's attorney Sharon Arkin of Newport Beach in a press release announcing the case. "And it is particularly disturbing that Kaiser is endangering those who need its help most -- the elderly, frail, and sick."
Although the lawyers believed Kaiser's policy was neither safe nor voluntary, they ultimately concluded they couldn't directly challenge the medical merits of the practice. After all, definitively proving that pill-splitting had led to adverse health impacts would be difficult, since all the patients involved in the case were already sick -- sometimes seriously. And Phillips and Metz hadn't turned up any cases in which patients had been gravely injured or killed by the practice. They hoped the lawsuit would ensure that no Kaiser member ever would be seriously sickened by taking an improper dose of medication. "I get nothing financially from this lawsuit," Phillips says. "We're simply out to change the policy. I've lost time and money on this."
Lacking clients who could definitely prove that their illnesses were made worse by pill-splitting, Ni and her colleagues were forced instead to challenge Kaiser on regulatory and legal grounds, two of which sounded mostly like procedural technicalities. The most substantive of the three claims was their contention that Kaiser's medication scheme undermined the policy of the federal Food and Drug Administration, which carefully regulates the size, shape, and quality of prescription drugs. "In pill-splitting, the very medication is being altered," Arkin observes. "The FDA establishes standards for a reason. Who the hell is Kaiser to decide they know better than the FDA?"
A second allegation claimed that Kaiser's pill-splitting program violated a state consumer-protection law, which requires companies to deliver on the promises they make to customers in their promotional literature. Since Kaiser promoted itself as an organization that put patients first and offered the highest quality care, the lawsuit alleged that the program clearly broke those promises and therefore breached state law.
Finally, the suit alleged that the plan violated the medical providers' standard of care in California, which requires firms to disclose any financial interests they have in health-care decisions. Because Kaiser profits from pill-splitting, the lawsuit contended that the firm was required to reveal that to its patients. "Kaiser should be disclosing to its patients that its bottom line is improved if the client splits pills, but they're not doing that," Ni says. "That's why it's unlawful."
Two years into the lawsuit, the debate over pill-splitting is louder than ever. But even as the debate raged on, the lawsuit was thrown out of court last week by a Superior Court judge in Alameda County, who ruled that his court was the wrong venue.
"It is a bad day for consumers," Metz laments. "What this pill-splitting amounts to is one of the largest, uncontrolled medical experiments in the history of the United States that is being conducted, near as I can tell, primarily to make health insurance companies money."
Because pill-splitting was the subject of a legal challenge, Kaiser officials declined to be interviewed for this story. But in an official written statement, HMO officials defended the practice and pointed out they are not alone in embracing it. Kaiser insists that any savings from pill-splitting is reinvested in patient care and that the practice is safe, supported by research, and has been praised by national consumer groups as an effective strategy for ensuring medications are affordable.
"At Kaiser Permanente, decisions about the safety and appropriateness of tablet-splitting are made by physicians and pharmacists," the statement says. "The safety and benefit of tablet-splitting has been demonstrated by research. It is supported by national consumer groups as an effective strategy to make drugs more affordable, and a number of government-sponsored health-care programs -- including several state Medicaid programs and Veterans Administration centers -- have adopted tablet-splitting."
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