25 ALAN MUNEY, M.D.; Sworn
1 DR. ALAN MUNEY, CHIEF MEDICAL OFFICER,
2 OXFORD HEALTH PLANS: Thank you, Assemblyman
3 Gottfried and the panel.
4 First, I'd like to recognize what Ms.
5 O'Connell said, which is we certainly do have a lot
6 to learn about Lyme disease. That having been said,
7 we have a lot to learn about many of the diseases
8 that we deal in day in and day out. And what we base
9 current treatment on is evidence-based medicine. And
10 if you look at just the course of Lyme disease, you
11 know, it's been almost 25 years since the curious
12 illness was noted in Connecticut, and we didn't know
13 anything about it. We now know what causes it. We
14 know how it's transferred. We know what the
15 treatment should be. We know what diagnosis can
16 be -- what tests can be used for diagnoses. And as
17 with everything in medicine, there's going to be some
18 controversy around treatment and even diagnosis.
19 This exists whether it's in illnesses such as cancer,
20 congestive heart failure, and the list goes on and
22 But what I'm here to talk about is the
23 principles that have guided me not only in my views
24 as Chief Medical Officer at Oxford, but also in my 18
25 years of practice as a pediatrician and a pediatric
1 hospitalist, and that is that: As frustrating as it
2 may be at times, we're only as good as the science
3 that we have produced in medicine and the treatments
4 that have come from that science.
5 Without going over a lot of what Dr.
6 Liegner did, we certainly know the organism. You've
7 heard the issues around the diagnoses. And in terms
8 of the tests, what we see at the health plan is that
9 there still is some confusion about the disease. And
10 that confusion may come from -- everything from some
11 doctors not being well-read on the issues to just
12 normal professional disagreements about how to treat
13 an illness. But we do see that practitioners
14 diagnose Lyme disease in cases where they have not
15 included other diagnostic possibilities. There's
16 misinterpretation of marginal false-positive tests.
17 Again, you've heard some of the difficulties with the
19 But to come back to evidence-based
20 medicine and who puts out guidelines, I think we sit
21 here and it's easy to say we have disagreements with
22 certain organizations. But the Centers for Disease
23 Control, the FDA, the American Academy of Family
24 Practice, the American -- rather, the Infectious
25 Disease Society of America - of which I might add
1 that Patricia Coyle is a member of - all have come
2 out with diagnostic and treatment guidelines based
3 upon the current status of science. So, let me dwell
4 a little bit on that, in terms of the medical
5 protocols that we use at Oxford.
6 We do use the medical protocols that
7 are based on these practice guidelines that are put
8 out after very rigorous scientific research,
9 controlled studies on large number of patients. That
10 is why it's a little bit concerning for me to sit
11 here and listen to a lot of very passionate and,
12 understandably, well-meaning approaches to an illness
13 that are, in the end, somewhat anecdotal and not put
14 to the rigorous tests of scientific evidence like you
15 do find in journals that are peer-reviewed by
16 academicians, such as the New_England_Journal_of_
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17 Medicine. Let me show you the process, though, and
18 talk a little bit about what New York State already
19 has in place to deal with controversial areas -- not
20 just in Lyme disease, by the way, but any new
21 technologies that come up that may have guidelines
22 around them that, again, medicine puts into the best
23 of their current knowledge.
24 Since 1999 - and this includes, by the
25 way, New York, Connecticut and New Jersey for us -
1 we've received almost 500 requests for intravenous
2 antibiotic therapy for late-stage Lyme. Every
3 request is reviewed by board certified
4 rheumatologists, infectious disease specialists, and
5 we approved 73 percent. So, the vast majority go
6 through approved. Of the 57 cases that were denied
7 for various reasons -- and those reasons run the
8 gamut, frankly, from -- anywhere from antibiotics
9 that want to be used that have no proven value to
10 treatment regimens that skip weekends and things like
11 that. Of the 57 cases, we had only 12 percent, or
12 only seven of them were overturned, and this included
13 going to New York State External Review as well as in
15 Now, frankly, given a disease that is
16 obviously very controversial, an uphold rate of 88
17 percent, I think, is rather phenomenal and I think it
18 speaks to the process that is used. And, again, we
19 endorse very highly the treatment guidelines put out
20 by those organizations. We endorse very highly the
21 process of New York State's External Review, because
22 I think it works definitely to the betterment of the
23 citizens of New York State. And in that process the
24 specialists in Lyme disease in those board certified
25 areas are used by the External Review agents that
1 look at the tests. So, I think overall it's a very
2 good process and that it's working.
3 I would also like to bring up that
4 inappropriate use of antibiotics -- we all have heard
5 the problems. There is either resistance that
6 develops in the germs or that patients develop
7 complications. And I have to tell you, even among
8 the cases that were approved, we still had a ten
9 percent complication rate, in terms of complications
10 from antibiotic use, everywhere from liver problems
11 to low blood counts. And that, again, was in things
12 we had approved. So, I think it behooves us to be
13 very prudent, to limit the risk of long-term, unended
14 antibiotics, particularly when you at least take the
15 possibility into account that you may do more harm
16 than good, ultimately.
17 But, in the end, we're all sitting here
18 because we want all patients to get all the medicine
19 that they need and none that they shouldn't. That is
20 high-quality medicine. That is the tenet of the
21 evidenced-based medicine that, as a doctor -- and
22 that as all of the doctors that belong to all of
23 these professional societies -- who, by the way,
24 write these guidelines based on the evidence, who
25 subscribe to -- we're only as good in medicine as
1 current thought.
2 Now, that's not to say that physicians
3 can't have important theories about how to treat;
4 that there aren't both physician anecdotes about what
5 happened to their patients, as well as patient
6 anecdotes about what happened to them when they were
7 treated. But, in the end, unless these theories and
8 anecdotes are tested in a controlled, scientifically
9 rigorous fashion, we would not have progressed today
10 to the point we are in medicine, with the wonderful
11 technologies and treatments that they have, because
12 they have to be peer-reviewed and they have to, after
13 peer review in reputable journals, be put into
14 widespread practice. And that is the frustration
15 here, because we have, clearly, persistent symptoms
16 in some people who have been treated with Lyme
17 disease. We have, clearly, doctors that are very
18 passionate about it. But, again, it's not only in
19 Lyme disease. It happens in cancer, it happens in
20 heart disease. But, in the end, we're governed by
21 the science - and reproducible science - that studies
22 lend themselves to be.
23 Now, I do want to bring up the study
24 that was published early, by the way, because it
25 seems so significant, in the New_England_Journal_of_
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1 Medicine. And this study tried to deal with the
2 issues of what happens with the post-Lyme syndrome,
3 or what's also known as chronic Lyme disease, in both
4 patients who have had a positive test and those
5 patients who have been treated with Lyme previously,
6 with a negative test, trying to recognize that there
7 have been difficulties in terms of the testing.
8 And what happened was these patients
9 were given up to 90 days of antibiotics, which is
10 basically twice the guideline, in order to see what
11 happened. And, in fact, the reported symptoms -
12 either better, the same or worse - among these
13 patients were exactly the same when they were treated
14 with more antibiotics or when they were treated with
15 placebo - placebo meaning nothing at all.
16 So, again, this is a peer-review
17 journal. This is the New_England_Journal_of_Medicine
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18 . And very few journals, frankly, have such esteem
19 among doctors that they will cause widespread change
20 of practice. And anecdotal studies, studies that,
21 again, are reported on single cases, need to be put
22 to this rigorous test in terms of large numbers of
23 patients. It is only then that science progresses.
24 And in terms of what we do at the
25 health plan, we do try to use evidence-based medicine
1 and guidelines. And regarding the cost, when new
2 technologies come out, of course they cost more.
3 But, in the end, it's a decision that society is
4 willing to pay for; it is ultimately reflected in the
5 premiums. So, in terms of the long run, we have, you
6 know, no predilection one way or the other to go
7 except with what the evidence says, and the cost is
8 what it is over the long run.
9 So, again, you know, there's got to be
10 sympathy for the chronic symptoms as well as for the
11 doctors who are passionate about treating them. I do
12 think that the process that we have in place, again,
13 in New York State works very well. If something
14 falls out of the guidelines -- and, by the way,
15 guidelines are just that. They're just guide posts
16 along the way. They should not be black and white.
17 And, in fact, every case that doesn't fit the
18 guidelines ends up getting reviewed by experts who
19 look at the individual issues in the case, the
20 difficulties that have happened along the way, and
21 then render an opinion. I don't think, frankly,
22 whether it's in terms of medicine in general with
23 guidelines or whether it's in terms of the external
24 review process that's already in place in New York
25 State, that we can ask any better of the people that
1 are trying to, as specialists, deal with those
3 So, in the end, we have also had our
4 problems with patients and with doctors. I've heard
5 a lot about the OPMC today. We, frankly, had a
6 patient who complained to us after she had
7 complications from long-term intramuscular injections
8 of penicillin. We actually did, through our quality
9 management committees, which are made up of
10 practicing physicians as well as specialists in the
11 appropriate areas, in this case, Lyme, look at
12 another ten cases and found - and this their words -
13 "gross over-diagnosis, treatment beyond guidelines,"
14 and in their view it was a problem. And I reiterate
15 this only because, again, in medicine, we're only as
16 good as the current evidence and guidelines.
17 Anecdotes, issues that come up need to be put to the
18 test. And, again, the problem with why we're so --
19 we're sitting here today is because there's so much
20 passion around illnesses for which there is no
21 seeming relief of symptoms, even after the best
22 evidence is used.
23 And so where will we be in 25 years
24 from now with Lyme disease? It's hard to say because
25 we've come so far in the first 25 years. In the end,
1 frankly, any therapeutic -- it still remains in the
2 hands of experienced physicians that evidence-based
3 guidelines and national standards of care. Where
4 there are conflicts between how a physician wants to
5 treat a patient and what the guidelines say, the New
6 York External Review Program already in place should
7 be used as it was intended: To have experts in the
8 field review the cases according to the evidence,
9 according to the guidelines. And until all
10 physicians use evidence to govern how they practice,
11 whether, again, it's in Lyme disease or other
12 diseases, patients will continue to get treatments
13 that they shouldn't and not get the treatment that
14 they should. We want evidence to really govern what
15 appropriate treatment is. Allowing untested theories
16 and individual physician anecdotes to dictate
17 allowable treatment regimens, in general, do a
18 disservice, frankly, to why we're here: Again, to
19 ensure that the high-quality based-medicine be
20 delivered to the patients of this state.
21 Thank you.
22 MR. GOTTFRIED: Thank you. Could you
23 just review for me, or state for me again -- you
24 referred in the New York, New Jersey, Connecticut
25 region --
1 DR. MUNEY: Yes.
2 MR. GOTTFRIED: -- to 550 requests for
3 treatment, 73 percent of which were approved
4 initially. The treatment involved, again, was --?
5 DR. MUNEY: The treatment involved was
6 requests for long-term antibiotics, which we actually
7 allow even beyond the guidelines, up to six weeks --
8 which happened to coincide with the Connecticut
9 legislation. And that's actually -- what Connecticut
10 has chosen to do was -- and I hope it was clear when
11 Mr. Blumenthal was speaking -- was they were using
12 the available evidence to dictate the treatment.
13 Now, where board certified specialists, again, in
14 those areas that normally deal with Lyme disease have
15 said that you should go beyond that length of
16 treatment, we have used external review to review it.
17 And obviously we abide by the decision.
18 MR. GOTTFRIED: So, Oxford itself,
19 other than going through external review, would not
20 approve some -- would not approve antibiotic
21 treatment longer than six weeks?
22 DR. MUNEY: What Oxford would do is
23 approve antibiotic treatment intravenously; that is,
24 up to six weeks' treatment -- actually, both oral and
25 intravenous combined unless, again, you know,
1 specialists recommended in specific instances after
2 they reviewed the case.
3 MR. GOTTFRIED: Meaning your
4 specialists or the patient's --?
5 DR. MUNEY: No, these are independent
6 specialists; in other words, the infectious disease
7 specialists. These are not Oxford physicians. In
8 other words, they're independent specialists we send
9 these cases out to.
10 MR. GOTTFRIED: But the company's
11 policy would be that if there was a request from a
12 patient, based on a treatment recommendation by the
13 patient's board certified rheumatologist, what have
14 you, for longer antibiotic treatment than the initial
15 six weeks, Oxford's policy would be to deny that and
16 to provide it only if your judgment were -- the
17 company's judgment were overturned either by internal
18 review or by external review?
19 DR. MUNEY: That is correct, because
20 the current practice guidelines - again, the ones put
21 out, as I said, by the Infectious Disease Society of
22 America, CDC, the American College of Physicians -
23 all state that. So --.
24 MR. GOTTFRIED: Those guidelines state
25 that longer than six weeks is never appropriate?
1 DR. MUNEY: The current guidelines that
2 are in place will say, for example, for late Lyme
3 disease, that there's -- you get a month's worth of
4 oral therapy or a month's worth of parenteral
5 therapy. If you have a reoccurrence, you actually
6 can get more therapy, another month of either, as
7 well. So, these are the guidelines that are in
9 And so I think the point I'm trying to
10 make is that if the -- again, these are written by
11 physicians. We don't -- and if there's any
12 misconception about this -- I think it's very
13 important. Health plans do not write their own
14 guidelines for treatment of illnesses like this. We
15 incorporate the guidelines that are out there, in
16 terms of the evidence-based medicine, and then we
17 look at things to see if they satisfy those
18 guidelines. And, again, this is not different for
19 Lyme disease. It is not being singled out. It's the
20 same thing whether it's a new treatment in another
21 area or whether it's established treatments that need
22 to be reviewed appropriately against guidelines, no
23 matter what the illness.
24 MR. GOTTFRIED: Is it your
25 understanding that -- just to turn to the state of
1 the peer-reviewed literature and --
2 DR. MUNEY: Uh-huh.
3 MR. GOTTFRIED: -- of course, not all
4 peered-reviewed literature is about double-blinded
5 clinical trials. Is it your understanding that
6 evidence-based medicine would conclude at this stage,
7 that longer term treatment than you would -- that you
8 cover under your guidelines has been demonstrated to
9 be wrong, or is it that it has not been demonstrated
10 to be appropriate? In other words, is it something
11 where we know the answer and the answer is no, or is
12 it something where you believe we don't yet know the
14 DR. MUNEY: Well, the current evidence,
15 again, as in the recently published article in the
16 New England Journal, would state that the current
17 evidence -- now, whether it's right in 25 years or
18 wrong in five years -- again, medicine is dynamic.
19 Studies are done all the time and guidelines changed
20 to be appropriate for the practice. And so at the
21 current time, in the current state of thinking with
22 the current literature that's been published, again,
23 by reputable peer-reviewed journals such as New
24 England Journal -- and they're very -- again, few
25 journals that will change the widespread practice of
1 medicine; that's one of them. At this current time,
2 the thinking does not support that.
3 MR. GOTTFRIED: Now, the New England
4 Journal study, if we're talking about the one that
5 came out, I guess, spring of this year --
6 DR. MUNEY: I'm talking about the
7 Klempner study.
8 MR. GOTTFRIED: -- was fairly limited
9 in terms of number of patients and duration. Was
10 Oxford's practice different before that study came
12 DR. MUNEY: Well, first of all, let me
13 clarify it. I don't know what you mean by "limited"
14 in terms of duration and the number of patients.
15 What the experts felt, that were looking at the
16 study, was that they thought it was so important that
17 there did not seem to be any significant difference
18 in those two sets of patients that they actually
19 terminated the study early. And at the time they
20 terminated it, it had a hundred some-odd patients in
21 the study. And what they looked at was the
22 guidelines -- they actually doubled the guidelines
23 for the current thinking, which was up to 90 days.
24 So, in terms of what Oxford -- then
25 Oxford was at the current published guidelines --
1 which, as a result of that study, by the way, people
2 reaffirmed that that's the current state, that's
3 where it should be right now.
4 MR. GOTTFRIED: Meaning the six weeks?
5 DR. MUNEY: Meaning up to six weeks of
7 MR. GOTTFRIED: Okay. Because that's
8 about half of 90 days.
9 DR. MUNEY: That's half of what the
10 study -- that's right, that's half of what the study
11 had looked at. The study actually gave antibiotics
12 for up to 90 days, both, again, in placebo - meaning
13 nothing - oral and IV, and used both patients who
14 didn't have the diagnosis of Lyme - they tested
15 negative but had the persistent symptoms compatible
16 with what we call chronic Lyme disease or post-Lyme
17 syndrome - and compared it to the patients who did
18 have positive. So, it kind of tried to take both of
19 those sets of patients in, and did not show any
20 difference. The same number of people said they got
21 better, stayed the same or got worse.
22 So, it's this type of study that needs
23 to be done, in terms of rounding up other treatment
24 regimens and stop them from being theories and
25 anecdotes, and see if they're actually viable for
2 MR. GOTTFRIED: Was there an evidence
3 basis before this New England Journal study for the
4 guidelines being used by Oxford and several other
6 DR. MUNEY: Well, the guidelines are
7 always evidenced-based. I can't recount without
8 going back and looking, you know, historically the
9 article that came out. But when guidelines get
10 published, again, by these societies, they do
11 incorporate the length of -- or duration, as it's
12 called -- of the treatment and monitor what happened
13 with those patients. That's how the guidelines come
15 MR. GOTTFRIED: Because from what
16 little I know about such things, the -- I mean, my
17 sense of New England Journal study was that it was a
18 relatively small study and only one study. And
19 practice guidelines -- and if you talk about an
20 evidence practice guideline, I would think you would
21 want that to be based on an analysis of considerably
22 more than one study.
23 DR. MUNEY: Well, I think if you look,
24 again, across the spectrum, different illnesses that
25 have guidelines, you will find defining studies that
1 have a statistically valid number of patients -- and,
2 again, that's what the peer review process looks at.
3 And so it assesses, essentially, or audits the
4 process, how the patients were enrolled, whether it
5 was a statistically valid number of what they were
6 saying happened to be correct in their conclusions
7 compared to the evidence that they documented during
8 the study. So, you'll find varying numbers of
9 patients in different studies that end up being --
10 determined to be evidence of a change in treatment
11 plan that's being called for, for that particular
12 illness, and then ultimately published as a
14 MR. GOTTFRIED: I would appreciate it
15 if you could assemble what Oxford -- I mean, I assume
16 you can do this -- could assemble such a collection
17 of articles --
18 DR. MUNEY: Yes, we could.
19 MR. GOTTFRIED: -- on this question and
20 either send us the articles or the references?
21 DR. MUNEY: Yes, I would be happy to
22 put together a bibliography for you that kind of
23 traces it over time.
24 MR. GOTTFRIED: Okay. And I guess -- I
25 think my last question would be: What has been
1 Oxford's experience with the Connecticut law?
2 DR. MUNEY: Our experience with
3 Connecticut law has generally been favorable from the
4 point of view that the Connecticut law is
5 evidence-based. It does allow those specialists who
6 have specific competence in Lyme disease as
7 outlined - as you heard, neurologists, infectious
8 diseases, et cetera - to override, if you will, a
9 guideline based on individual patient need. Now, the
10 same, of course, occurs currently in the New York
11 State External Review Law, in the sense that the
12 specialists who review the case have that latitude to
13 override it. So, from that point of view, the actual
14 way it functions has not been significantly different
15 in our experience.
16 MR. GOTTFRIED: Well, the difference,
17 as I understand it, between the Connecticut law and
18 the New York law is that in the New York system -- I
19 mean, there are -- there can be three or four board
20 certified specialists: One is the patient's treating
21 physician, the other is the company's own reviewer, a
22 third would be the internal review person that the
23 company may turn to, and then the fourth would be the
24 people at the external review stage. They could all
25 be board certified specialists in infectious diseases
1 and all four could come to a different conclusion.
2 The significance in the Connecticut law is that it is
3 the first of those that I mentioned, namely, the
4 patient's treating board certified infectious disease
5 specialist, who would be the governing person there.
6 And that's significantly different from the system in
7 New York.
8 DR. MUNEY: Well, the system -- in that
9 case, that would be different in the sense if it was
10 a board certified infectious disease specialist
11 who -- and if I had to choose one problem --
12 theoretic problem, that is -- as I said, I don't
13 think our experience has had any difficulty -- but a
14 theoretic problem could be if, even though the doctor
15 was board certified in those diseases that they --
16 infectious disease, et cetera, that they were not
17 following the current evidence, then theoretically it
18 doesn't -- you know, it matter what their board
19 certification is. I think the intent of the law was
20 to allow those physicians with that
21 subspecialization, who theoretically have that
22 knowledge, are current with the current thinking of
23 how to treat that disease, to have the latitude to do
24 what they would like. So, in general, it works.
25 When the issue would come through
1 Connecticut, the practice -- in fact, I would have to
2 check, Assemblyman, to see whether or not, actually,
3 it would go to a second board certified infectious
4 disease specialist. I'm not aware that it would at
5 the current time. In New York, the difference would
6 be that if it went to external review - which,
7 frankly, as a second opinion program for patients is
8 not a bad idea - it would definitely have to go to,
9 you know, a specialist within external review. That
10 may be infectious disease, it may be rheumatology,
11 for example.
12 MR. GOTTFRIED: Okay. Thank you.
13 DR. MUNEY: Sure.
14 MR. GOTTFRIED: Other questions?
15 MS. O'CONNELL: Yeah. Thank you,
16 Doctor, for your testimony.
17 I'm just a little fuzzy on some of the
18 information you gave us earlier. You said you had --
19 in terms of approval for antibiotic therapy you had
20 500 requests. And that came from how many patients?
21 Maybe I missed it. I'm sorry.
22 DR. MUNEY: Well, we had 489 --
23 MS. O'CONNELL: Okay.
24 DR. MUNEY: -- requests, right, for IV
25 therapy across the Tri-State. I assume -- I would
1 have to go -- I assume those are on the same
2 patients, but I would have to go back and look.
3 MS. O'CONNELL: You mean 489 different
4 patients or 489 requests?
5 DR. MUNEY: That's 489 requests. It's
6 obviously possible some of them could be on the same
7 patients. I would to have to go back and get that
8 specific data.
9 MS. O'CONNELL: Yeah, that's what I'm
10 interested in.
11 DR. MUNEY: We can get that.
12 MS. O'CONNELL: That would be great.
13 DR. MUNEY: Sure.
14 MS. O'CONNELL: Because I would like to
15 see whether or not the requests you're receiving come
16 from, you know, 25 patients who made 500 requests for
17 antibiotic --
18 DR. MUNEY: Sure.
19 MS. O'CONNELL: -- therapy and over
20 what course -- what period of time these requests
21 were made. Because maybe -- you know, maybe what
22 you're telling us is that we have a small pool of
23 people asking for numerous cycles of antibiotics, or
24 we have -- you know. And you understand my question?
25 DR. MUNEY: Absolutely.
1 MS. O'CONNELL: I would really love to
2 see that hard data.
3 DR. MUNEY: I can tell you we have a
4 definitely smaller number of physicians that are
5 making the majority of the requests.
6 MS. O'CONNELL: I'm sorry, you have a
7 small --?
8 DR. MUNEY: We have a smaller number of
9 physicians that are making the majority of the
10 requests. But I would have to go back and get you
11 the numbers on both the numbers of physicians and how
12 many they are responsible for each, as well as how
13 many patients --.
14 MS. O'CONNELL: Why do you think you
15 have a smaller -- is that a smaller number of
16 physicians making these requests? That number is
17 diminishing over, say, a period of years; two years,
18 three years? Can you give me some kind of context
19 whether or not --?
20 DR. MUNEY: I couldn't.
21 MS. O'CONNELL: You couldn't. Okay.
22 DR. MUNEY: I couldn't. And, in fact,
23 I would expect it, if anything, to expand, given the
24 fact that, you know, Lyme disease is -- first of all,
25 it's the most reported infectious disease among --
1 you know, for -- caused by insects, spiders. Because
2 there's over 16,000 -- those are just the reported
3 cases per year. So, you know, we're dealing with,
4 you know, a very large epidemic, as, you know, has
5 been said more eloquently today than I have.
6 MS. O'CONNELL: Because my concern is
7 that I would like to see what Oxford's experience has
8 been regarding the chronic patient who may require
9 multiple courses of treatment over a period of time.
10 You know, I think that might be helpful to us to sort
11 of get an idea of what your experiences are. And
12 that would be helpful in evaluating where we might be
13 going with this --
14 DR. MUNEY: Right.
15 MS. O'CONNELL: -- and that would be
16 very good.
17 I have no other questions right now.
18 Thank you, Doctor.
19 DR. MUNEY: Thank you.
20 DR. MILLER: Thank you.
21 Just let me begin with a comment so we
22 can clarify something, because you kept referring to
23 "experts," and I think it's important that we clarify
24 the definition of "expert" by looking at its root.
25 "Ex" is a former and a "spurt" is a drip under
1 pressure. And so we seem to be getting a lot of
2 advice of former drips under pressure, but I'm not
3 sure that that's necessarily scientific either.
4 You talked about evidence-based
5 medicine, and it seems to me that we have two pools
6 of evidence. We have one pool of evidence that, as
7 an example, says that it's very difficult to get,
8 under the current situation, an easy blood test to
9 verify the existence of Lyme disease. That's one set
10 of evidence. And then you have another set of
11 evidence that says that you have to have a bull's-eye
12 rash and you have to have a blood test and -- you
13 know, the CDC says this.
14 Did you ever have a case where your
15 company chose the body of evidence that would cause
16 you to spend more money rather than less money? In
17 other words, did you ever decide that, well, gee,
18 there's evidence A and there's evidence B, let's go
19 with evidence B. It will cost it twice as much, but
20 I like that set of evidence better. Do have any
21 entity that you could refer to where you -- because
22 there evidently is still two pools of evidence here.
23 Do you have any cases like that?
24 DR. MUNEY: Well, with all due respect,
25 Dr. Miller, evidence-based medicine -- and to use the
1 experts that you elucidate, the experts -- my
2 definition of "experts" are those that are grounded
3 in scientific principle, what experiments mean, what
4 the evidence within those experiments would allow to
5 become adopted as treatment. They are not flippant.
6 DR. MILLER: Flippant.
7 DR. MUNEY: It is -- and neither are
8 health plans. And, again, with all due respect, I
9 think it's easy to sit up there and have a dialogue
10 in which it's made to look like insurance plans are
11 sitting here and trying to decide on smaller bodies
12 of evidence rather than those that are published by
13 experts, professional societies, and everyone that I
14 name. That's not the case.
15 DR. MILLER: Okay. So, I could take it
16 that the answer is you've never selected a body of
17 evidence where you would have had to pay more? Do
18 you remember the case in California? It had to do
19 with bone marrow transplants, where the insurance
20 company kept insisting that it was so experimental
21 that we shouldn't pay for it. I think it cost them
22 $123 million to make that prudent decision. And,
23 yet, now bone marrow transplants seem to be a
24 relatively --.
25 DR. MUNEY: Well, actually, the case,
1 Dr. Miller -- if you want to get specific, it was the
2 Nellie Fox case back in the '80s. It was Health Net.
3 They denied a bone marrow transplant based on
4 absolutely the correct evidence according to all the
5 experts that testified at the trial. They were
6 overturned because Nellie Fox happened to not be an
7 employee of Health Net, whereas the last one they
8 approved was an employee of Health Net, that had
9 different medical criteria, different clinical
10 course, and that the experts agreed should not have
11 had it. So, it's a bad example.
12 DR. MILLER: Well, we have our own
13 opinions based on the evidence.
14 DR. MUNEY: And you can look it up.
15 DR. MILLER: Let me ask you this.
16 You're a pediatrician. Do you remember a time in our
17 history when premature babies were treated by being
18 put into oxygen-rich environments?
19 DR. MUNEY: Absolutely.
20 DR. MILLER: And did most of the
21 pediatricians that provided that treatment end up
22 getting sued when these people reached their majority
23 and had lost their vision?
24 DR. MUNEY: The problem with that --
25 again, you choose a case in which neonates received
1 high-dose oxygen therapy, trying to save their lives
2 with -- by passionate physicians who knew not else
3 what to do. There was no other treatment at the
4 time. They developed retrolental fibroplasia, which
5 interfered with their vision, and most of them did go
6 blind. And it was out of the passion to try to treat
7 them, which, again, was based at the time on
8 anecdotal evidence -- correct passion, anecdotal
9 evidence, and ended up hurting them. And that's
10 exactly what I'm trying to say we should not allow to
11 happen here.
12 DR. MILLER: So, if you have someone --
13 and we used to hear that, you know, 28 days of
14 antibiotic treatment and you're cured; right? I
15 mean, we had Detweiler out at Stony Brook said 28
16 days of treatment and now you're cured. Well, how do
17 you explain a situation where you've had your 28 days
18 of treatment and now you're cured, and you have no
19 additional invasion by a microorganism and then
20 suddenly you begin to show the symptoms again? So,
21 you haven't been reinfected, but now you're not
22 cured. So, there we had expert opinion. It happened
23 to be what was widely believed at one point not that
24 long ago. And now the person is showing symptoms
25 again - not new infection, the same old infection.
1 Obviously, it wasn't cured. And this can go on and
3 How do you determine the exact length
4 of time when someone is cured based on the
5 evidence-based evidence you like, from the experts
6 that you like, if, in fact, they keep getting sick?
7 And, of course, if you're going to give me the answer
8 that, well, these people don't get any better, and
9 we've proved that with the placebos up in the New_
10 England_Journal_of_Medicine -- and I think that the
_______ _______ __ ________
11 people in the audience here would love to have a
12 bottle of those placebos so that they don't have to
13 take the antibiotics anymore, and they'll feel better
14 and cured. But, I mean, how do you have people
15 without additional infection keep coming up with the
16 same types of symptoms and have people -- is it that
17 each week you can change your evidence and say, well,
18 we thought they were cured, now they're not cured, so
19 we're still right. But now they're cured, well, I
20 guess they're not cured, but we're still right
21 because we're using the same group of evidence. I
22 mean, that's what we're seeing here. We have people
23 who, based on the evidence that you're referring to,
24 have been cured -- it's like the person who can stop
25 smoking every night when they go to sleep, they just
1 start again every morning when they wake up. I mean,
2 have they really stopped smoking?
3 I mean, how do you explain this
4 continuation if, in fact, we're referring to this
5 body of evidence that you select which says that they
6 keep getting cured, but unfortunately the cure just
7 doesn't last?
8 DR. MUNEY: I just want to reiterate,
9 it is not the body of evidence that I select. It's a
10 body of evidence that very well-educated, academic
11 physicians who have been in the field decide to
12 select because it demonstrates the scientific rigor
13 of experiments and studies that are done on these
15 Now, to the extent that there are cases
16 not explained by what has already gone on within
17 those studies and the evidence presented, again, that
18 is no different in Lyme disease than it is in any
19 other field of medicine. But to take the individual
20 cases -- and, again, we can't sit here without the
21 sympathy for what is driving us to be sitting here.
22 We have a chronic illness for which we have the best
23 evidence that we know at the current time. Like any
24 other illness, it may be completely different
25 evidence in 10 or 15 years, but medicine does the
1 best that they can at the current time that we live
2 in. And as a dentist who studied -- that clearly
3 should have been part of your education. Anybody
4 who, frankly, practices outside of the evidence on a
5 chronic basis, I think there's an issue.
6 DR. MILLER: Well, let me ask you this.
7 You keep referring to medicine, but you're really not
8 medicine. You're the insurance company that's
9 paying. So, shouldn't we make a differentiation
10 between what medicine says and what the insurance
11 company is willing to pay for? I mean --.
12 DR. MUNEY: No -- I -- no, I think we
13 should stop right there and try to address that.
14 What any insurance company pays for and
15 the decisions what they pay for is based upon the
16 best evidence that there is. We could pay for
17 everything, you know, from, you know, instilling hot
18 ascorbic acid into, you know, festering wounds, if we
19 would like to, but there is no evidence to say that
20 that's the appropriate treatment. If everyone wants
21 insurance companies to cover that, it can be covered.
22 But the premium resulting over time -- which is a
23 decision that, you know, society decides that they
24 may or may not want to pay for. It's just something
25 we have to deal with.
1 DR. MILLER: Let me ask you this, then.
2 Would you say that the State of New York and the
3 State of Connecticut violated all reasonable
4 scientific evidence when they decided that insurance
5 companies were wrong for throwing -- or trying to
6 throw women and their babies out of hospitals within
7 24 hours of birth? Was that something that is so
8 overwhelmingly supported by scientific evidence that
9 you can sit there and say we're wrong and, in fact,
10 women and their infant babies should, in fact, be out
11 of the hospital in less than 24 hours?
12 DR. MUNEY: You know, I don't think
13 we're here to discuss that, but the --.
14 DR. MILLER: But we're talking about an
15 insurance company which keeps saying that they're not
16 making decisions based on money, the fact that every
17 decision is always "let's pay the least we can," but
18 they're saying it's based on the overwhelming
19 scientific evidence. And I'm asking you, since that
20 was a determination made by insurance companies and
21 HMOs, is there, in fact, overwhelming scientific
22 evidence that it makes good sense to ask women and
23 their infant children to leave the hospital within 24
25 DR. MUNEY: If you would like me to get
1 the evidence for that one way or the other, I would
2 be happy to, Dr. Miller. In fact, I'd also like to
3 point out that these same insurance companies that
4 you are claiming make the decisions on what to pay or
5 what not to pay based upon the least common
6 denominator are the same insurance companies that
7 when you compare them to fee-for-service, in every
8 single measure that you name and any study that you
9 can name, chronically shows that managed care
10 companies actually have provided a high level of
11 care, paid for more tests for things to prevent
12 illness. We have disease management for many of the
13 illnesses that you named, including Lyme disease.
14 Other insurance companies do not do that. If you
15 want to compare on Medicare, in terms of what health
16 plans pay who do managed Medicare compared to what
17 fee-for-service Medicare pays, there's no disease
18 management, there's no customer service, there are no
19 triage nurses on call on night.
20 So, if you want to be, again, very
21 flippant up there and decide that insurance companies
22 only do the least common denominator, I'm happy to
23 discuss it with you after the testimony.
24 MR. GOTTFRIED: Let me ask you one
25 other question, and this will be the last question.
1 How many patients that remained ill would it take to
2 convince the insurance companies that there might be
3 a problem? Is it ten patients, is it 100 patients,
4 or is it the 10,000 patients in New York State alone
5 that seem to continue to have these problems? Is
6 it -- I mean, can we look at a scientific body of
7 evidence and say that these 10,000 people would be
8 just as well off taking placebos, or is it that these
9 10,000 people refuse to conform with what some
10 guidelines are? I mean, we can't ask the people
11 conform to the guidelines rather than have the
12 guidelines conform to people -- although I have to
13 remember that when I was taking anatomy, a professor
14 that I had, who happened to be world renowned -- he
15 was an older, quite elderly gentleman, and he didn't
16 hear very well and he didn't speak very well and he
17 the shakes. And he would constantly say, "It doesn't
18 matter what the book says; the body is always right."
19 But we're going to go by the book and not the body,
20 so I guess he was wrong as well.
21 DR. MUNEY: Well, I'll just state
22 again. We're only good in medicine -- and the
23 insurance companies, the guidelines that are
24 published by the professionals within medicine, and
25 that's what we go by.
1 MR. GOTTFRIED: Nettie?
2 MS. MAYERSOHN: Just a few questions.
3 I think we can all agree that there is no clear test
4 that will tell you whether you have Lyme or you do
5 not have Lyme; that whole area seems to be in debate
6 and in flux. Do we agree on that?
7 DR. MUNEY: I'm not sure we do agree on
8 that. I think that there are --.
9 MS. MAYERSOHN: What I'm saying is, I
10 have read enough the material to get a sense that you
11 can test positive for Lyme and be negative and you
12 can test negative for Lyme --.
13 DR. MUNEY: That's correct. There are
14 false positives and there are false negatives, but I
15 would like to put that into context.
16 Tests are available for many different
17 illnesses. There are false positives and false
18 negatives for many tests in many other illnesses as
19 well. It's, unfortunately, a fact of life that we
20 have to deal with. Trying to base your judgment on
21 clearly on only what the test says may be a problem
22 in certain patients.
23 MS. MAYERSOHN: Right.
24 MR. MUNEY: I think that's what we can
25 all agree on. But we can also agree that when there
1 are differences of opinion among clinicians who --
2 again, I don't know a single doctor that comes to
3 work trying to do a bad job -- there are going to be
4 disagreements on how to treat a patient and what
5 things mean. That's why we have the process, as we
6 said, of having specialty review and external review
7 in the state, and I think it serves the purpose very
9 MS. MAYERSOHN: Okay. What percentage
10 in Lyme disease, would you say -- where the tests are
11 erroneous, whether -- is it ten percent? Is it two
12 percent? How does that compare with other diseases?
13 DR. MUNEY: I have to apologize. I'm
14 not an infectious disease specialist. I would have
15 to go and look that up for you. If you're asking is
16 it, you know, inordinately high in Lyme disease
17 compared to some things in other diseases, I would
18 have to look. But from having dealt with some of
19 these cases, it doesn't appear to be the case.
20 MS. MAYERSOHN: Where there is no clear
21 answer to our questions, where we don't know, where
22 we test positive and it could be negative, and vice
23 versa, doesn't it mean we have to go to the
24 clinician, to the doctor who's treating the disease,
25 and get a sense of what he's seeing in his practice?
1 Doesn't it make sense to talk to a doctor like Dr.
2 Liegner to find out what is happening in his practice
3 that leads him to go on to further treatments beyond
4 the 60 days or the 30 days?
5 DR. MUNEY: I think it's very
6 appropriate to ask the docs like Dr. Liegner, who are
7 as passionate as they are, what and why -- what it is
8 and why it is that they believe that way. But, in
9 the end, it has to be turned into science; it can't
10 be anecdotal.
11 MS. MAYERSOHN: But we're not at the
12 end. We're not at the end.
13 DR. MUNEY: I understand that, but it's
14 the same issue --.
15 MS. MAYERSOHN: When we have a clear
16 test, we will be at the end. Right now we are
17 not --.
18 DR. MUNEY: But it's not just an issue
19 of the test. It is not just an issue of the test. I
20 have to say that in one of the cases that we had,
21 again, that a member complained, there was no
22 positive test. There was the opinion that,
23 regardless of the fact that there was no positive
24 test, this doctor did not even look at other
25 illnesses that may have been causing the problems.
1 They used --
2 MS. MAYERSOHN: Do you know that for a
4 DR. MUNEY: It is in the written
5 descriptions from the medical records that were
6 abstracted. And let me just comment. So, in the
7 opinion of the specialists that reviewed these
8 cases -- and if may have just been a problem with
9 this doctor. I mean, there are -- you know, doctors,
10 you know, are in a Bell-shaped curve as far as good
11 and bad, as we all know. This doctor --.
12 MS. MAYERSOHN: I hate to interrupt,
13 but I don't to lose my train --.
14 DR. MUNEY: Sure.
15 MS. MAYERSOHN: When you say in the
16 view of the specialists --
17 DR. MUNEY: Yes.
18 MS. MAYERSOHN: -- who reviewed the
19 case -- whose specialist? Is he the specialist that
20 was referred by the doctor that originally treated,
21 or is there a panel of so-called specialist experts
22 that's set up by the HMO or whatever?
23 DR. MUNEY: No. Well, actually what
24 these were -- were independent specialists in the
25 area of Lyme disease, both rheumatologists as well as
1 infectious disease --.
2 MS. MAYERSOHN: But who's the --
4 DR. MUNEY: Yes.
5 MS. MAYERSOHN: I know about
6 independent people, but who selected them? Who put
7 this list together, this panel together?
8 DR. MUNEY: Well, of course, you know,
9 we chose among specialists that are in the area, of
11 MS. MAYERSOHN: And they're -- I assume
12 they're paid?
13 DR. MUNEY: Excuse me?
14 MS. MAYERSOHN: Are they paid by the
15 HMO or --?
16 DR. MUNEY: The doctors who review
17 cases are paid for their time. It's no different
18 than anything else -- including external review, I
19 might add. And I think, though -- and it's important
20 we talk this through. I think the --.
21 DR. MILLER: Let me just correct you on
22 that. In New York State now, external view, the
23 particular HMO doesn't pay the doctor anymore.
24 DR. MUNEY: The HMO pays the external
25 review agency.
1 DR. MILLER: They don't pay the -- but
2 the doctors are hired by an external group --
3 DR. MUNEY: That's correct.
4 DR. MILLER: -- and the insurance
5 companies have no choice but to pay on the basis of
6 so many dollars per insured person. So that the
7 doctor is now able to testify against the insurance
8 company because, although they're paid by the
9 insurance company, they're not hired by the insurance
11 DR. MUNEY: I understand that, but --
12 again, I think we should give -- Dr. Miller, excuse
13 me. I think we should give doctors that review
14 cases -- and you can say the same thing whether
15 they're reviewing them for automobile accidents all
16 the way through to Lyme disease. Let's give the
17 doctors who are specialists a little bit of credit.
18 They review cases -- when they review cases and give
19 their opinion - excuse me - their medical license and
20 their opinion is on the line if they do go to court,
21 okay, and if somebody does complain against them.
22 So, the fact that somebody pays for their time, it
23 can be insinuated that, of course, yes, they're going
24 to side on the side of the HMO. I have yet to see --
25 MS. MAYERSOHN: But the point is --.
1 DR. MUNEY: -- in general practice that
3 MS. MAYERSOHN: The point is there's a
4 debate going on within the medical community, and we
5 want that debate to remain within the medical
6 community and not have government get involved in the
8 DR. MUNEY: Uh-huh.
9 MS. MAYERSOHN: The debate within the
10 medical community has set up sort of two separate
11 camps, from what I understand. And there are the
12 doctors who believe in long-term treatment, if
13 short-term treatment isn't insufficient, and there
14 are doctors who believe in the short-term treatment.
15 And when select your list, I assume you know what
16 camp that doctor is in. And I'm just wondering if
17 there's a bias when you select your doctors to be on
18 the panel?
19 DR. MUNEY: Again, we choose our
20 doctors to review the cases, but ultimately the
21 arbiter is external review. And to Dr. Miller's
22 point, that is HMO-independent in terms of who is
23 paying who and who's deciding what. So, I think the
24 process works -- and I want to come back to that.
25 We're in a very controversial area. There's lots of
1 passion, there's a lots of evidence, and there's a
2 lots of people who feel the evidence isn't sufficient
3 with what they see. Ultimately, though, it's an
4 issue across all illnesses.
5 MS. MAYERSOHN: You know --.
6 DR. MUNEY: We have external review to
7 arbitrate that.
8 MS. MAYERSOHN: Okay. Unfortunately,
9 that's part of the problem, that external review
10 appeared to be part of the debate now. You know, you
11 keep using the word "passionate," but I'm not sure
12 I'm comfortable with that word. I think there are
13 doctors who are taking a position because they really
14 believe that they're going to be helping their
16 DR. MUNEY: That's the passion I'm
17 talking about.
18 MS. MAYERSOHN: It's not just based on
19 passion. It's based upon experience, it's based on
20 what they consider good medical practice. So, if --
21 when I think of "passion," I think of --.
22 DR. MUNEY: Assemblyman, I don't
23 disagree with you on that. I think passion is
24 caring, it's concern --.
25 MS. MAYERSOHN: But it's other things,
1 too. It's hard medical experience, good physician
2 practicing medicine, and it's not driven by this, you
3 know, emotion that I get a sense of when talk about
5 DR. MUNEY: That's correct. And the
6 emotion part, what -- the scientific studies that are
7 done to try to produce the evidence by which
8 treatment and practice can be implemented for disease
9 is, in a sense, dispassionate in that it removes the
10 emotion from it. And I think that's what we have to
11 keep going back to in medicine. As frustrating at
12 times as it can be, we're only as good as the
13 evidence that exists.
14 MS. MAYERSOHN: Okay. Just one more
16 There have been a number of complaints
17 against doctors by the OPMC, and you spoke about one
18 patient complained that was referred to OPMC --.
19 DR. MUNEY: No. Actually, we -- the
20 patient -- the one I'm talking about, the patient
21 herself --
22 MS. MAYERSOHN: Right.
23 DR. MUNEY: -- I guess another
24 physician -- I'm not sure how it happened, but
25 somebody told her to review -- to complain about her
1 doctor to OPMC. And, in fact, the specialist that
2 reviewed the cases for us -- we didn't make any final
3 determination because we found out that OPMC was
4 looking at it, because they subpoenaed all the
5 records that the specialist had done. So, we kind of
6 just have it hanging.
7 MS. MAYERSOHN: Can you tell me if it's
8 kind of -- is it practice for insurance companies to
9 refer what they see as inappropriate medical care by
10 Lyme doctors -- is it a practice that they refer
11 these complaints to the OPMC? We're trying to find
12 out how many complaints are patient-initiated and how
13 many complaints have been initiated by the insurance
14 companies or the HMOs or whatever.
15 DR. MUNEY: Yeah, I can tell you a
16 little bit about --.
17 MR. GOTTFRIED: Keep the interruptions
19 DR. MUNEY: I'm sorry. I can tell you
20 just a little bit about the process. If a patient
21 such as this one complained to us, we try to get as
22 much of the medical record, send it out for
23 independent reviewers to look at. And then if, in
24 the opinion of the independent reviewers, they noted
25 that there is a significant - in their opinion -
1 quality problem, we refer it to our regional quality
2 management committee, which are made up of practicing
3 physicians, not Oxford medical directors, who look at
4 what the issues were. And then they can decide that,
5 well, this physician should be sent a letter
6 outlining -- maybe they -- everything from you need
7 more continuing medical education to it's such a
8 serious offense that we want to go ahead and
9 terminate them from the network. That, of course,
10 happens rarely. There's also a due process part,
11 legally, that we do within the health plan if it
12 comes to that.
13 We will refer something to OPMC if we
14 have terminated a doctor from the network. It is
15 more common occurrence, because of all the dealings
16 OPMC has, that they put out a notice on the doctors
17 that they have suspended privileges on or that they
18 want to revoke the license on. If they revoke the
19 license, obviously we have to eliminate that doctor
20 from the network. If they suspend the license, same
21 thing. If they put the doctor on a focused review,
22 we can choose to do the same, or we can just let the
23 doctor practice, which is what we usually do, and
24 just defer to what the OPMC decides to do.
25 MS. MAYERSOHN: Okay. Could you give
1 us a list or the number -- or a list of cases where
2 the complaint was initiated by the HMO or the
3 insurance company?
4 DR. MUNEY: Oxford's experience?
5 Oxford's experience in the past year, I can tell you
6 we have only that one case that -- to our knowledge,
7 anyway, that we were informed of, that the patient
8 made a referral to OPMC. And, again, the only away
9 we know that is because they subpoenaed our records.
10 If members complain about --.
11 MS. MAYERSOHN: Do you have any
12 knowledge of the insurance company complaining?
13 DR. MUNEY: I would only have knowledge
14 of Oxford's. Again, the only way that we would find
15 out -- we could have a dozen patients that are
16 complaining to the OPMC. We don't know unless --
17 because the OPMC keeps that confidential while their
18 doing their review.
19 MS. MAYERSOHN: Thank you.
20 DR. MUNEY: Thank you.
21 MR. COHEN: Good afternoon, Doctor. I
22 say this sincerely, I thank you for coming. As the
23 Chairman pointed out, the State Department of Health
24 has declined to come. And I've looked at the witness
25 list, and you're the only insurance company that has
1 appeared. And I admire your political courage in
2 appearing here this afternoon. I'm sure you didn't
3 anticipate a pleasant experience -- no, I say that
5 DR. MUNEY: Thank you. It's
7 MR. COHEN: I'm sure you have heard,
8 possibly suspect, that the residents of New York
9 State believe that medical insurance companies deny
10 claims for services and procedures in an arbitrary
11 manner. You referred to the external appeals review
12 process. I'm sorry, I don't have the publication
13 with me. I believe it was produced by the State
14 Insurance Department. And it was a recapitulation
15 statistically --
16 DR. MUNEY: Yes.
17 MR. COHEN: -- of the years 1999 and
18 the years 2000 - perhaps you're familiar with what
19 I'm referring to - of external appeals cases. And
20 industry-wide, I believe the reversal rate in 1999
21 was 52 percent, and I think in 2000 it was 47
22 percent. And, please, I'm not saying this to be
23 mean, but my true recollection was that the Oxford
24 reversal rate was 80.
25 DR. MUNEY: No. Actually, our --
1 Oxford's reversal rate was the best, if you will,
2 among all health plans, meaning --
3 MR. COHEN: It was?
4 DR. MUNEY: -- our -- I can tell you
5 our uphold rate was, I believe, 63, 64 percent, which
6 is substantially higher than other health plans.
7 Said the other way, our, you know, overturn rate was
8 in the 30s.
9 MR. COHEN: All right. So --.
10 DR. MUNEY: I, again, can get you the
11 exact -- they're actually better.
12 MR. COHEN: For purposes of this
13 discussion, we'll accept the one-third reversal rate.
14 DR. MUNEY: Right.
15 MR. COHEN: If Oxford is basing its
16 decisions on evidence-based medicine, then what are
17 the people on the external appeal review panel doing?
18 Because, obviously, they're not basing it on
19 evidence-based medicine. What are they basing their
20 decisions on?
21 DR. MUNEY: Yeah. No, I think it's an
22 excellent question, and I think the answer is exactly
23 the part and parcel of why we are sitting here today.
24 Because when -- no matter what illness you get that
25 you're reviewing ultimately, when it gets to that
1 level you are dealing in shades gray. I think Dr.
2 Liegner said, you know, everyone loves to see, you
3 know, black and white, but it just -- with certain
4 patients, with certain illnesses, it is just not that
5 way. So, I think what your you're seeing is very
6 bona fide differences of opinion.
7 Now, we have very detailed analysis -
8 which I can get for you - on what our overturns were
9 for in external review. And, frankly, there are some
10 that clearly don't fit the guidelines at all, that we
11 have written to -- not just Lyme, but -- and,
12 frankly, not so much Lyme, but other areas -- that we
13 have written to the Department of Health and Dr.
14 Gesten about what is the quality control that even is
15 going on external review if these things clearly
16 don't fit the guidelines. And we attached the
17 guidelines, et cetera. But at the end of the day, I
18 think it is acceptable, honest disagreement about
19 what the appropriate clinical course should be for a
20 particular illness. That's just inherent in the fact
21 that, you know, medicine has a lot of variables.
22 MR. COHEN: You know, once again, the
23 public's negative attitude towards medical insurance
24 companies -- some of it's shared by myself. There's
25 the following thought processes: That the decisions
1 to deny services -- many of them, if not all of
2 them -- I'm sorry, many of them are arbitrary, the
3 logic being as follows: If you're reversed, you're
4 going to pay for the service. And if a person is
5 denied and does not file an appeal, and perhaps if
6 they did file an appeal, there would have been a
7 reversal. Well, this is money that's being saved by
8 the medical insurance company.
9 DR. MUNEY: Uh-huh.
10 MR. COHEN: That's the thinking of many
11 people. I would just like to finally --.
12 DR. MUNEY: Would you like me to
13 respond to that briefly?
14 MR. COHEN: If you --.
15 DR. MUNEY: Yeah. I mean, just very,
16 you know, briefly.
17 I can speak for Oxford, and I can speak
18 for the fact that we have a very rigorous medical
19 director consistency program in place that literally
20 examines the doctors on their decisions compared to
21 what the guidelines are that are published by
22 professional societies. And people that make wrong
23 decisions need to correct that, and we actually have
24 a second tier review in our process that examines
25 against guidelines to make sure that we didn't make a
1 mistake. So, for Oxford, I can sit here and tell you
2 we pay a lot of attention to trying to get it right.
3 MR. COHEN: Finally, what -- I think
4 that I'm getting eventually to a possible, well,
5 progressive step -- not only in Lyme disease, in all
6 medical claims and services. Dr. Liegner referred to
7 a seven-year-old patient that was receiving
8 intravenous antibiotic for a period of, I believe,
9 six months, and there was a physician reviewer for
10 the corporation, which denied further intravenous
11 antibiotic treatment. And Dr. Liegner wrote a letter
12 to this physician -- and if I could read just a few
14 (Reading) "Mr. and Mrs. X" -- meaning
15 the parents of the seven-year-old child. "Mr. and
16 Mr. X cannot afford to pay for X's for the treatment
17 unless they are reimbursed by their insurance
18 coverage. To suspend treatment when this child is
19 showing progress in terms of diminished seizure
20 frequency, resumption of ability to take sustenance
21 by mouth, and ability to walk is both cruel and
22 lacking in compassion. But more than this, it is my
23 considered opinion that for a physician to fail to
24 treat this patient intensively at this point, or to
25 prevent such treatment by one's actions as a
1 third-party administrator review physician, would
2 constitute criminal medical negligence."
3 Now, Mr. Liegner -- Dr. Liegner was
4 incorrect, because in this the state an insurance
5 gatekeeper is not subject to criminal or civil
6 medical malpractice suit. I'm going to assume that
7 Oxford is opposed to changing the law so that
8 insurance gatekeepers would become subject to such
9 lawsuits, both civilly and criminally. I can imagine
10 what your opinion would be, but do you understand
11 from my point of view and the public's point of view
12 why we feel that if insurance companies were subject
13 to medical malpractice, that would remove the climate
14 or the assumption that insurance companies are
15 denying claims in an arbitrary manner. Because if
16 they were subject to medical mal., they -- it would
17 be just too costly and expensive for them to continue
18 to engage in acting in such a manner.
19 DR. MUNEY: Well, in the case you just
20 cited, I'm going to assume that Dr. Liegner, as well
21 as the patient's next step -- if it hadn't been, it
22 should have been to external review. And the fact
23 that based upon what external review decides is what
24 the insurance company does. And, again, these are
25 honest disagreements among clinicians.
1 To the question as to whether that
2 substantiates the need for having HMOs open to
3 litigation --
4 MR. COHEN: If I could --?
5 DR. MUNEY: -- I think that's not the
6 case if external review is doing its job. And I
7 think the track record in New York is that it is.
8 Otherwise, what's going to happen is if malpractice
9 suits are filed right and left, then all you're going
10 to do is drive up the cost in general of health care
11 when, again, we have a perfectly appropriate system
12 already in place, which is external review.
13 MR. COHEN: I mean, just as an
14 addendum, Doctor, with respect to this seven-year-old
15 patient, antibiotic therapy was stopped on 12/3/96,
16 the patient died on 1/30/97. This was before
17 external review. There was no external review in
18 this --.
19 DR. MUNEY: Again, I can't comment on
20 the facts of the case, whether the diagnosis was
21 correct, whether there were second opinions. But,
22 again, we're in the here and now, and the here and
23 now -- I think we're all confident that external
24 review would help that case.
25 MR. COHEN: Thank you.
1 DR. MUNEY: Thank you.
2 DR. MILLER: If I could just make a
3 comment, though. If an insurance company says no,
4 and then it takes someone else to say no, the
5 insurance company is wrong, the answer should have
6 been yes, that doesn't exonerate the insurance
7 company. Under the law, you're absolutely right.
8 But for the insurance company to say, "Ah, see, we
9 were perfectly fine," because there's someone else to
10 step in and say yes is not the answer. The question
11 is, why should the insurance company have said no in
12 the first place, and how often -- I mean, it's a
13 strange circumstance that we have.
14 MR. GOTTFRIED: We're getting a little
15 far afield from the specific question of the hearing.
16 DR. MILLER: But, Richard, this is what
17 goes on all the time. If the insurance companies had
18 said yes to all of these patients --.
19 DR. MUNEY: Dr. Miller, you're assuming
20 the insurance companies are saying no capriciously
21 and not according to guidelines.
22 DR. MILLER: You caught me.
23 DR. MUNEY: Well, I would --.
24 MR. GOTTFRIED: Let me interrupt.
25 DR. MUNEY: Dr. Miller, I would advise
1 you to look at our medical director consistency
2 process as I outlined.
3 MR. GOTTFRIED: The Assembly has a bill
4 on legal liability of health plans. We've passed
5 that bill several times -- I think, unanimously.
6 That legislation - which I'm the author of, so I like
7 it a lot - is not the focus of this hearing. The
8 purpose of this hearing is to focus on whether
9 chronic Lyme and long-term antibiotic treatment are
10 where those items are on the spectrum of reasonable
11 medical practice. If we have further questions on
12 that point for Dr. Muney, we should pursue them, but
13 I think we have probably pretty much exhausted him
14 and the questions.
15 MS. MAYERSOHN: Richard, I just have --
16 and it's not really a question, but I was just
17 wondering. If -- since you appear to be comfortable
18 with the Connecticut law, could we count on working
19 together to achieve something similar in New York?
20 DR. MUNEY: I want to clarify that.
21 I'm comfortable with most aspects of the Connecticut
22 law. I think that the principle of the Connecticut
23 law, again, is evidence-based medicine guidelines.
24 And to the extent that that principle can be
25 incorporated in anything that New York State does, I
1 think that would be okay. But I want to hasten to
2 add that, again, we have a perfectly good mechanism
3 in place right now, which is external review, and
4 presumably the impartial experts that are reviewing
5 these cases are doing it according to evidence.
6 MR. GOTTFRIED: And let me just note
7 that Dr. Muney is Oxford's medical director. They
8 also have a government relations director. But I
9 think it is a safe bet that we will be having further
10 discussions about the Connecticut legislation.
11 With that, I'm want to thank Dr. Muney
12 for his testimony and being here today. I appreciate
13 your being here.
14 DR. MUNEY: Thank you for the
16 MR. GOTTFRIED: Okay. We are now going
17 to take what will be advertised as a five-minute
18 break, as they say in the long-term care field, for
19 ambulation and toileting, and we will then be back.