When an individual goes up against a multibillion-dollar company, odds of prevailing are slim.
But every now and then, justice smiles on the little guy. It’s smiling on Tampa internist Jose Ignacio Lopez, who won $1.5 million in a slander suit against a global health-finance powerhouse.
Of the award, $1 million constitutes punitive damages for “gross negligence” by OptumRx Inc., a subsidiary of UnitedHealth Group Inc. OptumRx was negligent in two ways, the arbitrators said: It said bad things about an innocent doctor and then failed to correct the mistake.
OptumRx, which handles $80 billion a year in pharmacy spending on behalf of 67 million Americans, may not blink at an award of $1.5 million.
But that company and others should heed the warning implicit in the case, says Jay Wolfson, University of South Florida Distinguished Service Professor of Public Health, Medicine and Pharmacy.
With health-finance companies growing and merging, contracting out some services and developing multiple layers of subsidiaries, they can easily lose track of important details, Wolfson said.
“The question that this case raised for me,” he said, “was: Is this about being too big to succeed as an American corporation?”
According to public records, here is what happened:
Sometime in the fall of 2013, a vendor for OptumRx mistakenly placed Lopez’s name on a list of doctors who could no longer participate in Medicare, based on records from the Department of Health and Human Services’ Office of Inspector General. That list was then sent to pharmacies, saying their prescriptions would not be covered.
But the Jose I. Lopez who was barred from federal programs was an employee of a Miami billing company who was convicted of fraud in 2003. The Tampa physician with that name had never been in trouble. The vendor could have compared the Medicare identification numbers to make sure he had the right Lopez, but didn’t.
In December 2013, Lopez began to hear from his patients that they couldn’t get their prescriptions filled. They said pharmacists told them the reason was that their doctor had been blocked from participating in federal programs.
Lopez began calling and writing OptumRx. Those he talked to said they’d look into it, but nothing changed.
In May 2014, five months after Lopez first notified OptumRx of its mistake, the company sent out letters to more than 100 of his patients, telling them that he was “excluded from participating” in federal health programs and thus his prescriptions could not be covered. The company offered to help patients find another physician.
At that point, Lopez hired a law firm, which had better luck in getting through to OptumRx. In June 2015, the company sent out another letter to patients retracting the first one and saying they could have their prescriptions from Lopez filled after all. The letter did not say how the mistake happened but apologized to patients for any “inconvenience.”
Lopez’s law firm, Weekley Schulte Valdes, filed suit for slander on his behalf in Hillsborough Circuit Court, which bumped it up to federal court. There, a judge noted that Lopez’s contracts with UnitedHealthcare and OptumRx called for arbitration in case of disputes.
The panel consisted of three experienced lawyers: one chosen by the defense, one by the plaintiff, and the third by the other two. The panelists held hearings last summer behind closed doors, and in September, they issued a report recommending the $1.5 million award.
They said that while OptumRx may not have had any intention of damaging the doctor, its “conduct exhibited a wanton and willful disregard for (his) right to enjoy an untarnished reputation …”
The company “was unwilling to take the few hours necessary to correct the information before publishing” it, the panel’s report says. That conduct “was motivated solely by unreasonable financial gain.”
U.S. District Court Judge James S. Moody Jr. issued the order in September, but it remained out of the public eye until December. That’s when the law firm that represented the doctor sent out a press release on a business wire.
That press release quoted Lopez as saying the case “was not about money” but “was about sending a strong and clear message that faceless companies that libel and slander doctors must be held accountable for their actions.”
Since the release went out, Lopez and his lawyers have been unavailable for interviews. In an e-mail, attorney Jody Valdes wrote that his client “wants to move past this very trying and difficult episode.”
Dr. Edwin M. Melendez, chief of orthopedic surgery at St. Joseph’s Hospital in Tampa, sees five or six patients a month referred by Dr. Lopez.
“His patients love him,” Melendez said.
Representatives of OptumRx and UnitedHealth Group, including their attorneys, have also been unavailable for comment. Telephone and e-mail requests drew no response.
It is unclear whether the mistake that harmed Lopez is unique. The law firm press release said there were “many” physicians “defamed by similar misconduct or gross negligence,” but it provided no specifics.
However, a second case of mistaken identity is mentioned in a document by a witness in the Lopez case. This time, the doctor’s name was Dr. Juan C. Garcia, in Miami. The doctor who appears to be the one erroneously caught in the mix-up, could not be reached for comment.
The report containing Garcia’s name was compiled by Eric W. Rose, a Los Angeles public-relations expert who consults on “crisis communications” with celebrities, business leaders and others who suffer a black mark on their image. Lopez’s lawyers hired Rose to rate the behavior of OptumRx and calculate damages to the doctor.
Rose said that when he first heard the case described he was skeptical. But after studying the records and phone recordings, he said, it was clear that OptumRx failed to investigate the problem, let alone fix it, for an outrageous length of time.
“Dr. Lopez and others called over and over again, asking why (OptumRx sources) were disseminating false information to his patients. And they didn’t react. They took his information and promised to correct it and never did,” Rose said.
“It was heartbreaking to hear the people who were calling, wondering why the prescriptions couldn’t be filled, being told information that truly wasn’t accurate,” Rose said. ”These are elderly people, many of whom don’t have English as their first language.”
Rose’s report identifies the OptumRx vendor that made the error as Enclarity Inc. of Irvine, Calif.