A Psychiatrist's Expert Report on the
First HMO Malpractice Lawsuit

By Barry Herman, MD, MMM

The nation's first HMO malpractice lawsuit, "Plocica vs. NYLCare et al, 1998," was recently settled. Mr. Joe Plocica was a member of a Medicare HMO that had carved out its mental health portion to a managed behavioral health care organization, Merit Behavioral Care (now part of Magellan). The case focused on the issue of whether Merit Behavioral Care and the psychiatrist employed by it as a utilization reviewer, made a treatment decision to discharge Joe Plocica from a psychiatric hospital over the objections of his treating psychiatrist. Mr. Plocica subsequently proceeded to drink a half gallon of antifreeze within 24 hours of his discharge, leading to his death. The Plocica family filed suit, an option made possible by the first state legislation that allowed HMOs to be sued for denials of necessary care (Texas Senate Bill 386, 1997).

Barry K. Herman, M.D., MMM, a Texas-licensed, Board Certified Child and Adolescent Psychiatrist, who is a former HMO medical director, was hired by the plaintiffs as lead expert witness to examine the case and to prepare a report. The case was settled between all of the parties before Dr. Herman appeared for deposition testimony. However, his expert report was filed with the court, and as such is a public document. Dr. Herman has made his report available in the hope that it will help our cause in the fight against managed care abuses.

February 20, 2000

George Parker Young
Friedman, Young, Suder & Cooke
20^th Floor, 500 Throckmorton
Fort Worth, Texas 76102  

Re: Cause No. 141-175780-98; Kathryn A. Plocica, et al. v.
NYLCare of Texas, Inc., et al.;
In the 141st District Court of Tarrant County, Texas

I have had an opportunity to review materials relative to the above-referenced case. In particular, I have reviewed documentation relevant to the admission, treatment course, and discharge of Mr. Joseph Plocica who was hospitalized at All Saints Health System (All Saints), Fort Worth, TX June 26-July 8, 1998. I have also reviewed documentation related to Mr. Plocica’s suicide attempt on or about the evening of July 8 or morning of July 9, 1998 causing his death on July 17, 1998.  I have paid particular attention to the activities of Dr. Harold Eudaly; Magellan Health Services, Inc. and its subsidiaries and its agents (Merit/Magellan)¹; NYLCare Health Plans, Inc. and its subsidiaries and its agents (NYLCare)²; and Gary Keith Neller, D.O. relative to Mr. Plocica’s treatment.

Of central importance to this case are the utilization management and utilization review processes as delegated contractually by NYLCare to Merit/Magellan and how they effected the decisions made regarding Mr. Plocica’s treatment. Merit/Magellan (through the activities of its utilization management program and through the activities of its agents, including Associate Medical Director Neller and care manager Joan McDaniel)
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            ^1,2  All defendants which are Magellan entities and Merit entities, as well as defendants Inroads and American Biodyne, are referred to collectively as “Merit/Magellan;” defendants which are NYLCare entities are referred to collectively herein as “NYLCare;”

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