Mark P. Robinson, Jr., Bar No. 054426
Sharon J. Arkin, Bar No. 154858
ROBINSON, CALCAGNIE & ROBINSON
620 Newport Center Drive, 7th
Floor
Newport Beach, CA 92660
(949) 720-1288, Fax 720-1292
Arthur Bryant, Bar No. 208365
Victoria Ni, Bar No. 212443
TRIAL LAWYERS FOR PUBLIC JUSTICE
One Kaiser Plaza, Suite 275
Oakland, California 94612-3684
(510) 622-8150, Fax 622-8155
Thomas Grande[1]
Davis Levin Livingston Grande
851 Fort Street
Honolulu, Hawaii 96813
(808) 524-7500, Fax 545-7802
Attorneys for Plaintiffs
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
COUNTY OF
ALAMEDA
|
AUDREY TIMMIS; LINDA GUDINO; WINSTON
YARBOROUGH; MARY O’DONNELL; SHIRLEY MILLIGAN; MARY CARGILE; CHARLES PHILLIPS,
M.D.; and CALIFORNIA CONSUMER HEALTH CARE COUNCIL, a California non-profit
corporation, Plaintiffs,
vs. KAISER PERMANENTE; KAISER FOUNDATION HEALTH
PLAN, INC.; KAISER FOUNDATION HOSPITALS, INC.; THE PERMANENTE MEDICAL GROUP,
INC; and DOES 1 through 100, inclusive, Defendants. _______________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
Case No. 833971-7 FIRST AMENDED COMPLAINT 1.
Violations of
the Unfair Competition Act,
California Business & Professions Code sections 17200, et seq. 2.
Violations of
the Unfair Competition Act, California Business & Professions Code
sections 17500, et seq. 3.
Violations of
the Consumer Legal Remedies Act |
GENERAL
ALLEGATIONS
A. INTRODUCTION
1. The
KAISER health system is the largest managed care entity in the country and
markets itself as offering the highest quality care for its members. KAISER
affirmatively represents in its marketing materials that its pharmacy
and drug prescription program is based on safety, efficacy, patient convenience
and quality of care and that cost is the “last consideration.” KAISER further represents that the
operations of the entire system is “in the hands of doctors.” In reality, however, KAISER forces its out-patient
members - many of whom are elderly and infirm - to accept prescribed medication
in dosages twice the amount necessary for a single dose and requires them to
split the pills in half in order to obtain their prescribed dosages. Thus, the only way the patients can attempt
to take the proper amount of medication is to split the pill as evenly as
possible by hand or by using a tablet splitter to try to obtain the necessary
single dose.
2. In
contrast, KAISER pharmacists, physicians and nurses are not required to split
pills in the in-patient setting.
3. While KAISER contends that its
pill-splitting program is voluntary and only involves splitting of appropriate
medications, the KAISER reality is again different than represented. In fact, patients are not given a choice
about whether they want to split their medications, but are simply provided the
double-dose medications and a pill-splitter, often without direction or
instruction. Even in the face of
strenuous objections by the patient or the doctor, KAISER’s pharmacists and
pharmacy managers oftentimes refuse to provide medication in single-dose form.
4. Studies
have demonstrated that pill-splitting of both scored and unscored pills in the
method required by KAISER’s out-patient system results in uneven splits and,
consequently, results in dangerous under- or over-dosages of medication. KAISER patients required by KAISER to engage
in pill-splitting have suffered real and appreciable injuries as the result of
KAISER’s policy. Some may have even
died. Contrary to KAISER’s public relations
statements and written policy statements, the patient reality in the KAISER
system is that patients are often required to split pills despite grave health
risks associated with the practice.
Patients are forced to split pills even over their expressed objection,
often without direction or instruction on how to properly split the tablets,
without systematic follow-up to assure that they are receiving the proper
dosages and without being informed, in advance, of the potential dangers in
these practices.
5. KAISER’s
pill-splitting program provides no therapeutic benefit to KAISER’s
patients. The only purpose of the
program is to increase KAISER’s operating profits, and, thereby, the bonuses
paid to its management. But KAISER
pursues this program at the risk of injury and death to its members. This pill-splitting policy is a sad example
of KAISER valuing money over its members and their health. This lawsuit seeks to stop this unfair and
fraudulent program and to force KAISER to refund to its members the profits it
illegally gained by forcing its members to split pills.
B. THE
PARTIES
6. Plaintiff
Audrey Timmis is a resident and citizen of the County of Fresno, State of
California and brings this action individually and as a representative of other
similarly-situated consumers pursuant to Civil Code section 1750, and on behalf
of the general public pursuant to Business & Professions Code section 17200
and 17500.
7. Plaintiff
Linda Gudino is, and at all relevant times was, a resident of the County of Fresno, State of California and brings this
action individually and as a representative of other similarly-situated
consumers pursuant to Civil Code section 1750, and on behalf of the general
public pursuant to Business & Professions Code sections 17200 and 17500.
8. Plaintiff
Winston Yarborough is a resident and citizen of the County of Contra Costa,
State of California and brings this action individually and as a representative
of other similarly-situated consumers pursuant to Civil Code section 1750, and
on behalf of the general public pursuant to Business & Professions Code
sections 17200 and 17500.
9. Plaintiff
Mary O’Donnell is a resident and citizen of Kings County, California and brings
this action individually and as a representative of other similarly-situated
consumers pursuant to Civil Code section 1750, and on behalf of the general
public pursuant to Business & Professions Code sections 17200 and 17500.
10. Plaintiff
Shirley Milligan is a resident and citizen of the County of Riverside, State of
California and brings this action individually and as a representative of other
similarly-situated consumers pursuant to Civil Code section 1750, and on behalf
of the general public pursuant to Business & Professions Code section 17200.
11. Plaintiff Mary “Polly” Cargile is a
resident and citizen of the County of Santa Cruz, California and brings this
action individually and as a representative of other similarly-situated
consumers pursuant to Civil Code section 1750, and on behalf of the general
public pursuant to Business & Professions Code sections 17200 and 17500.
12. Plaintiff
Charles Phillips, M.D. is a resident and citizen of the County of Fresno, State
of California and brings this action on behalf of the general public pursuant
to Business & Professions Code section 17204. Dr. Phillip has been both a consumer of KAISER medication and a
contract doctor for KAISER. As a
contract doctor for KAISER, Dr. Phillips treated KAISER patients who he
believes suffered hypertensive episodes as the result of KAISER’s
implementation and enforcement of its pill-splitting policy.
13. Plaintiff CALIFORNIA CONSUMER HEALTH CARE
COUNCIL (“CCHCC”) is a California non-profit, grassroots, volunteer-governed
and operated, public benefit corporation. CCHCC acts as an advocate, in all
available forums, to protect health care consumers from dangerous, deceptive,
dishonest, unlawful or unfair practices. CCHCC has among its constituents all
California consumers affected by Kaiser’s pill-splitting policies. Ensuring
that existing laws, designed to protect consumers from the acts and practices
with which Kaiser is charged, are fully and faithfully enforced is central to
CCHCC’s purpose.
14. Defendant,
KAISER PERMANENTE (“KAISER PERMANENTE”) is, and at all relevant times was, a
business entity whose form is unknown but which operates as a trade name and
umbrella organization through which the operations of the other named
defendants is controlled.
15. Defendant
KAISER FOUNDATION HEALTH PLAN, INC. (“KAISER HEALTH PLAN”) is, and at all
relevant times was, a corporation duly organized and existing under and by
virtue of the laws of the State of California and authorized to transact, and
is transacting, business in the County of San Francisco.
16. Defendant
KAISER FOUNDATION HOSPITALS, INC. (“KAISER HOSPITALS”) is, and at all relevant
times was, a corporation duly organized and existing under and by virtue of the
laws of the State of California and authorized to transact business in this
state, and is transacting business, in
the County of San Francisco.
17. Defendant
THE PERMANENTE MEDICAL GROUP, INC. (“KAISER MEDICAL GROUP”) is, and at all
relevant times was, a corporation duly organized and existing under and by
virtue of the laws of the State of California and authorized to transact
business in this state, and is transacting business, in the County of San
Francisco.
18. Plaintiffs
are informed and believe and thereon allege that defendant KAISER PERMANENTE is
a holding company which either directly, or through its ownership in the stock
of its wholly-owed subsidiaries, owns the whole or substantial portion of the
stock of the other named defendants in this action, and that KAISER PERMANENTE
controls the overall management and operations of other named defendants in
this action such that KAISER PERMANENTE is the alter ego of the other named
defendants. Plaintiffs are further
informed and believe and thereon allege that KAISER PERMANENTE is the head of
an enterprise which is divided for operational purposes into various sectors
and subsidiary corporations including, without limitation, the other named
defendants. Plaintiffs are further
informed and believe and on that basis allege that KAISER PERMANENTE requires
the various sectors and subsidiary corporations to direct revenues from those
operational sectors and subsidiary corporations through the corporate ownership
chain to KAISER PERMANENTE for the purpose, at least in part, of shielding
those revenues from potential punitive damages claims based on the misconduct
of the operational sectors or subsidiary corporations in engaging in their
day-to-day operations as mandated or controlled by KAISER PERMANENTE. To permit this conduct to shield revenues
from assessment of punitive damages constitutes a fraud and injustice such that
the corporate veil established by this enterprise should be pierced and the
alter ego doctrine applied in the context of this action. Because the named defendants are, or
believed to be, alter egos of KAISER PERMANENTE, they will be referred to
herein collectively as “KAISER.”
19. The
true names or capacities, whether individual, corporate, associate, or
otherwise, of defendants DOES 1 through 100, inclusive, are unknown to
plaintiffs, who therefore sue said defendants by such fictitious names. Plaintiffs are informed and believe, and on
such information and belief allege, that each of the defendants sued herein as
a DOE is legally responsible in some manner for the events and happenings
referred to herein, and will ask leave of this Court to amend this complaint to
insert their true names and capacities in place and instead of the fictitious
names when the same become known to plaintiffs.
20. At
all relevant times, defendants, and each of them, were the agents and employees
of each of the remaining defendants, and were at all times acting within the
purpose and scope of said agency and employment, and each defendant has
ratified and approved the acts of his agent.
C. KAISER’S REPRESENTATIONS
21.
KAISER is the largest managed care entity in the nation and markets
itself as a health maintenance organization that offers the highest quality
care for its members. For example:
·
KAISER touts in
its marketing and advertising, the results of various surveys and
accreditations regarding its quality.
(See Exhibit A.)
·
KAISER confirms
in its own marketing materials that “KAISER Permanente members deserve the
best!” (See Exhibit A; emphasis
added.)
·
KAISER markets
its senior care plan to senior and Medicare members by promising to “always
be there to protect” the senior care members, by promising to be “a plan
you can rely on” and by promising to cover prescription drugs. (See Exhibit B; emphasis added.)
·
Similarly,
KAISER promises its senior care members that the members’ doctors will be in
charge of the medical care decisions for members, that the senior plan will
make members “feel . . . safe,”and that patient care comes “first.” (See Exhibit B; emphasis added.)
·
Additionally,
KAISER represents on its Internet web site that the patient and the doctor make
medical decisions, that KAISER is top-ranked in quality, that KAISER wants to
be its members’ “complete health partner,” that it provides “top quality
care,” that KAISER has a “tradition of caring for your good health,”
and that it is committed “to principles of quality” and to “continuously
improving the clinical care and services” it provides. (See Exhibit C; emphasis added.)
·
KAISER further
represents on its Internet web site that its drug formularies are developed “to
ensure that the most appropriate and highest quality
pharmaceuticals are available for treating its members” and that the
formularies are “doctor-driven, quality-based” programs. (See Exhibit C; emphasis added.) Additionally, KAISER represents that its
formulary principles are based on factors such as “safety, efficacy;
patient convenience . . . quality of care” and the like and that cost
is the “last consideration.” (See
Exhibit C, emphasis added.)
·
KAISER
represents in its letters to subscribers that “Physicians stay with KAISER
Permanente because of the freedom they have to prescribe medicine the way
medicine should be practiced. At KAISER
Permanente, no clerk or gatekeeper is consulted when your physician . . .
prescribes medication” because “KAISER Permanente members deserve the
best!” (See Exhibit D, October
15, 1999 letter from Robert Pearl, M.D. and Richard Pettingill; emphasis added;
Exhibit A.)
D. THE KAISER REALITY
22. KAISER acknowledges that it does have a
written program and policy regarding pill-splitting by its members. KAISER asserts that the pill-splitting
program is wholly voluntary, that it applies only to medications which have
been demonstrated to be appropriate for splitting, that KAISER’s patients are
properly trained in how to split the pills and that if the patient or the
patient’s doctor objects to the pill splitting, the patient will be provided
with the single-dose version of the prescribed medication. The reality of how KAISER actually operates
its pharmacy practice, however, belies each of the representations set forth in
the preceding paragraphs and KAISER’s own representations about its
pill-splitting policy.
23. Certain prescription medications are
distributed by pharmaceutical manufacturers in the form of “scored” tablets
which have an indentation on their surfaces for the purpose of permitting the
tablet to be split, usually done using a small plastic device containing a
razor edge, known as a “tablet-splitter” or “pill-splitter”. These tablets are scored in order to allow
small-step increases in dosage until the proper and most effective dosage is
obtained, a process known as dose titration.
24. Other
tablets, however, are not amenable to or appropriate for pill-splitting under
any circumstances and are not, therefore, scored by the manufacturer. Sustained release medications and coated
medications, for example, are not intended to be split. Many other medications should not be split
because splitting cannot provide the accurate dosages necessary to treat the
patient’s condition. Additionally, the
splitting of some tablets causes the tablets to shatter into several unequal
pieces or to crumble, thus leaving the patient completely unable to ensure that
accurate dosages are being taken.
Indeed, small fragments that frequently result from pill-splitting are
virtually never consumed, and finger moisture and oils contaminate split
surfaces, changing the effectiveness and/or actual dosage of the
medication. As such, these medications
are not provided by manufacturers in a scored form and should never be split.
25. “Pill-splitting,”
as the term is used in this complaint, consists of KAISER’s practice of
providing prescription medication to members in tablets that contain twice the
single dosage prescribed by the members’ treating physicians and then requiring
its members to manually split the pills to obtain the required single-dose form
of their medication. Often, the members
are not trained on how to most appropriately split the pills and, even with
adequate training, many of the tablets still shatter, crumble or split
unevenly, leaving the patient with inconsistent and over-dosages or
under-dosages.
26. Three years ago, borrowing from a
financially-successful, but entirely untested, experiment conducted by the San
Diego Veterans Hospital, KAISER’s Central Pharmacy and Therapeutics Committee
(“the Committee”) decided that KAISER’s then-existing policy of having patients
split scored tablets could be expanded into an entirely new area - the
splitting of unscored tablets with the aid of pill-splitters originally
designed only for the splitting of scored tablets. The Committee created a list of unscored tablets which could be
split, a copy of which is attached as Exhibit E.
27. Although
the Committee and KAISER did not make the pill-splitting policy technically
“mandatory” with respect to its use by pharmacists and pharmacy managers, the
reality is that, as a result of KAISER’s “productivity bonus” system in place
with respect to each professional employee, financial pressure was applied to
drive KAISER’s pharmacists and pharmacy
managers to accept and implement the pill-splitting protocol, despite
objections from patients and contrary to instructions from patients’
prescribing doctors.
28. When doctors become employed by KAISER,
included in their employment agreements is a provision requiring them to
conform to KAISER’s policies, including its pharmacy policy. That generic agreement is used by KAISER as
its justification for permitting KAISER pharmacists to alter the prescriptions
as written by the doctors in order to dispense prescribed medication in double
dose amounts.
29. As
a result, KAISER members throughout the KAISER system in California, and
elsewhere, are forced to engage in “pill-splitting” in order to attempt to
obtain the proper dose of their medications and are therefore exposed to the
health risks associated with taking inconsistent dosages.
30. Additional
health dangers also result from the fact that the pill-splitting requirement
may not be consistently applied to the same patient from refill to refill. KAISER purchases pharmaceuticals under
various contracts with various drug companies.
Based on the particular contract for a particular medication, KAISER may
at times obtain the same medication in the lower-dose form and dispense that
lower-dose form to a patient that has previously been dispensed the higher-dose
form of the medication. Thus, over the
course of a single patient’s refills, the patient may change brands and move
from split pills back to whole pills and back to split pills. The inconsistency enhances the risk and
danger to the patient.
31. All
these dangers are exacerbated by the fact that KAISER does not perform any
follow-up on the patients subject to these pill-splitting requirements to
determine or correct any negative effects of the practice. The practices engaged in by KAISER as
described herein actually deprive KAISER members of safe, effective and
convenient medication systems.
32. The
American Medical Association, the California Pharmacists Association, the American Society of Consultant
Pharmacists and many pharmaceutical manufacturers, advise against such pill
splitting. Additionally, the FDA has
testified to an AMA subcommittee against large-scale pill-splitting and that
approved dosage and form should not be altered in post-market stages.
33. Studies have shown that even the splitting
of scored tablets can result in dosage variances of up to 20% from ideal dosage
(see Exhibit F), which can be extremely dangerous with respect to certain
medications, particularly blood pressure medications. For example, plaintiff Charles Phillips, M.D., as a contract
doctor providing emergency room services to KAISER patients in the Fresno area
over an 18-month period, was repeatedly required to treat KAISER patients on an
emergency basis for hypertensive crises due, in part, to under-dosing caused by
KAISER’s pill-splitting requirements.
Dr. Phillips confirmed the role of KAISER’s pill-splitting requirements
in contributing to the patients’ condition in these cases by actually observing
the patients’ leftover pill fragments rather than merely relying on computer
summaries of the patient’s medical care through KAISER.
34. Requiring
the splitting of unscored pills has no therapeutic or safety benefit to the
patient. Indeed, as demonstrated in the
relevant studies, splitting of unscored pills can actually represent a medical
danger to patients because it can result in uneven dosing or under-dosing. The only reason KAISER
requires its members to split their medication tablets is for the purpose of
increasing KAISER’s revenue and its professional management’s bonuses.
35.
For example, Prinivil, a blood pressure medication, is available in
20-milligram tablets and 40-milligram tablets.
The cost for 100 of the 20-milligram tablets is $100.25. The cost for 100 of the 40-milligram tablets
is $143.53. Thus, by dispensing 100
40-milligram tablets to a member, and requiring the member to split the tablets
in order to obtain 200 20-milligram doses, KAISER increases its profits by
$56.72, while causing inconvenience and potential medical problems to its
member.
36.
Similarly, Zoloft, a commonly-used anti-depressant, comes in both
50-milligram tablets and 100-milligram tablets. The cost for 100 of the 50-milligram tablets is approximately
$227.14, while the cost for 100 of the 100-milligram tablets is approximately
$233.70. Thus, by dispensing 100
100-milligram tablets to the member and requiring the member to split the
tablets in order to obtain 200 50-milligram doses, KAISER increases its profits
by $220.58 on that prescription.
37. It has been estimated that KAISER increases
its profits by approximately $4 to $5 million per year in California alone with
respect to a single blood pressure medication that it requires its members to
split.
38.
Prior to July 1, 2000, plaintiff Audrey Timmis was a member of KAISER's
health care plan. Ms. Timmis is an
emphysema patient whose KAISER physician prescribed a diuretic,
Triamterene/HCTZ, a generic form of Maxide, as, on information and belief, a
first-line treatment for her high blood pressure. The KAISER pharmacy, in conformance with the misleading,
deceptive and unlawful policy described above, provided Ms. Timmis her
medication in a double dosage and required her to split the medication, without
instructions and without a pill-splitter, despite the fact that the medication
is available in the prescribed dosage.
This generic form of Maxide is small, round and very crumbly. Ms. Timmis's husband split the medication
for Ms. Timmis by hand and the splitting resulted in unequal fragments.
39. Plaintiff
Linda Gudino is, a 59-year-old woman who has been a KAISER member for at least
the last three years. From the
inception of her KAISER membership, Ms. Gudino has been required by KAISER, as
part of its misleading, deceptive and unlawful policy described above, to split her medication, and she never
received any oral instructions or training on how to properly split the
medication and was never, to her knowledge, assessed by any KAISER pharmacist
or doctor as to whether she was an appropriate candidate for
pill-splitting. KAISER requires Ms.
Gudino to split 50 mg tablets of Tenormin (atenalol), a small, round tablet for
controlling blood pressure and treating cardiac conditions, in order to obtain
her 25 mg per day dosage. Additionally,
Ms. Gudino is required to split 5 mg tablets of Provera in order to obtain her
2.5 mg daily dosage. Provera is a
progesterone hormone replacement and comes in a very small, six-sided tablet
that is very difficult to split and which tends to crumble.
40. Plaintiff Winston Yarborough is a
64-year-old man suffering from essential tremor disease, who has long been
prescribed lisinopril to treat his high blood pressure. Mr. Yarborough has been a member of KAISER
since 1967 and is now enrolled in KAISER’s "Senior Advantage"
program. In or around November 1999, as
part of KAISER’s misleading, deceptive and unlawful policy described above, Mr.
Yarborough was given a new prescription for Zestril (lisinopril) in 40 mg
tablets, and instructed to split his medication to obtain a 20 mg/day dosage,
despite the fact that his essential tremor disease made splitting the tablets
extremely difficult. Mr. Yarborough was
never provided with any oral instructions or training on how to properly split
the medication and was never, to his knowledge, assessed by any KAISER
pharmacist or doctor as to whether he was an appropriate candidate for
pill-splitting. In August, 2000, Mr.
Yarborough obtained a refill of his prescription and was dispensed Prinivil
(another brand of lisinopril), but,
this time, was given 20 mg tablets.
Because his prescribed daily dosage was 20 mg, he should have been
instructed that he did not need to split those tablets. But in dispensing the medication, the KAISER
pharmacy provided no such instructions, and Mr. Yarborough continued to split
the tablets supplied in new prescription and was, unbeknownst to him, actually
taking 10 mg per day, or only half of his prescribed dosage.
41. Plaintiff Mary O’Donnell was a KAISER
member for many years before finally choosing to leave KAISER in May,
1999. During 1998 and 1999, Ms.
O’Donnell was prescribed Zestril (40 mg), Lasix and Paxil (40 mg) by her KAISER
doctor and was required by KAISER’s pharmacy to split the pills in order to
obtain the single-dose amounts. Ms.
O’Donnell is on oxygen almost continuously and the bronchodialators she is
required to use make her very tremulous, thus making it even more difficult for
her to split her medications. Ms.
O’Donnell’s daughter specifically requested that KAISER dispense Ms.
O’Donnell’s medications in single-dose dosages so that the pills would not have
to be split. KAISER refused the
request.
42.
Plaintiff Shirley Milligan is, and at all relevant times was, a member
of KAISER’s health plan program through premiums paid by her or on her
behalf. During the last four years,
plaintiff Shirley Milligan has received medication prescriptions from her
KAISER doctor for captopril, a generic form of Capotan, at 12.5 mg. per
dose. Captopril is a short-acting
medication for treatment of high blood pressure. In conformance with the policy as alleged above, KAISER
pharmacies dispensed double-dose tablets to plaintiff Shirley Milligan,
expecting her to split those tablets in order to attempt to obtain the correct
dosage of her medication, without even informing her that the pills were double
her usual dose, without notifying her that she should split her pills and
without providing her with a pill-splitter.
It was only by chance that Ms. Milligan compared her new prescription
bottle with her old prescription bottle and noticed that the pills were double
the usual dose. Upon contacting the
KAISER pharmacy involved, the pharmacy informed her that it was out of her
usual dose and asked her if she could just split the pills. Ms. Milligan protested and, only then, was
provided with the usual 12.5 mg pills she was used to taking.
43. Plaintiff
Mary "Polly" Cargile is, and at all relevant times was, a KAISER
member who, at all relevant times, suffered from essential tremor disease,
which causes her hands to shake uncontrollably. Because of this impairment, it is virtually impossible for Ms.
Cargile, no matter how careful she is, to accurately and effectively split
tablets, whether scored or unscored.
Despite her infirmity, KAISER insisted, as part of its misleading,
deceptive and unlawful policy described above, on and dispensing to Ms. Cargile
Diamox, a medication to treat her tremors, in 250 mg tablets, even though she
needed only 125 mg per dose. KAISER
required Ms. Cargile to split the Diamox 250 mg tablets even though the
medication was also available in a 125 mg dose.
44. During
the last four years, plaintiff Charles Phillips, M.D., a Board Certified
Emergency Physician has personally treated many patients who he believes have
suffered physical injury as the result of this practice on the part of KAISER. Additionally, plaintiff Charles Phillips,
M.D., as a contract doctor working for KAISER, was entitled to utilize KAISER’s
pharmacy services. As such, during the
last four years, Dr. Phillips prescribed medication for himself which did not
come in a scored form (lisinopril, 20 mg.) and submitted one prescription to
the KAISER pharmacy to be filled. Dr.
Phillips was provided, after the usual wait, with tablets containing a double
dosage (i.e., 40 mg.) of the prescribed medication and a pill-splitter by the
KAISER pharmacist. When Dr. Phillips
objected to the requirement that he split the tablets and that the prescription
called for the lower-dose tablets, he was informed that the double-dose tablets
and the splitter were the only available option for him. Upon further discussion, he was given a copy
of the KAISER policy out of Oakland regarding pill-splitting (Exhibit E). Upon later inquiry to KAISER’s Oakland
headquarters regarding the pill-splitting policy, Dr. Phillips was faxed information
from KAISER to the effect that no research had been done by KAISER prior to
implementing the pill-splitting decision.
(Exhibit G.)
45. As these examples illustrate, the reality
of how KAISER operates its pharmacy practices belies its promises of safety and
efficacy with respect to its members’ care.
FIRST CAUSE OF ACTION
(Violations of Business & Professions
Code section 17200, et seq.)
PLAINTIFFS, AND EACH OF THEM, FOR A FIRST
CAUSE OF ACTION AGAINST DEFENDANTS, AND EACH OF THEM, FOR VIOLATIONS OF
BUSINESS & PROFESSIONS CODE SECTION 17200, ET SEQ., ALLEGES:
46. Plaintiffs, and each of them, incorporate by reference each and every
paragraph of the General Allegations as though set forth in full in this cause
of action.
47. Plaintiffs
are informed and believe and thereon allege that KAISER has engaged in
unlawful, unfair or fraudulent misconduct in violation of Business &
Professions Code section 17200 including, without limitation, the following:
a. Misrepresenting to consumers the quality
of medical care and services provided by KAISER to its members at a time when
KAISER, in fact, engages in pharmacy practices which are inconvenient and
unsafe for its members and which are engaged in by KAISER for the sole purpose
of increasing KAISER’s revenues;
b. Misrepresenting to consumers that medical
decisions are made solely by doctors and the members without administrative
interference when, in fact, neither doctors nor patients can override the
pharmacy policy requiring that medication be dispensed in double-doses and be
split for use by the patient - all for the sole purpose of increasing KAISER’s
revenues;
c. Forcing members to engage in
pill-splitting of unscored medications while knowing that such conduct subjects
its members to certain inconvenience and potential physical injury - all for
the sole purpose of increasing KAISER’s revenues.
d. Requiring
patients to split scored or unscored pills without 1) an adequate screening to
determine the physical and/or psychological ability of each patient to perform
the task; 2) adequate individual training; 3) individual follow-up that assures
that each patient is actually consistently obtaining the prescribed dosage and
is not suffering any other inconvenience or adverse effect as the result of
these practices; and 4) informing each patient, in advance, of the potential
risks involved in these practices.
48. Accordingly, plaintiffs, on behalf of the
general public and pursuant to Business & Professions Code section 17204
hereby seek the following remedies with respect to KAISER’s unfair business
practices as alleged above:
a. An injunction against defendants, and
each of them, precluding them from engaging in these unfair business practices
in the future;
b. Restitutionary relief as determined to be
appropriate by the Court;
c. Any other and further equitable relief
deemed necessary by the Court, pursuant to the power granted to it under
Business & Professions Code section 17203 including, without limitation,
disgorgement of illegally-gained profits; and,
d. Reasonable attorneys' fees and costs upon prevailing in the request for injunctive and/or equitable relief.
SECOND CAUSE OF ACTION
(Violations of Business & Professions
Code section 17500, et seq.)
PLAINTIFFS, AND EACH OF THEM, FOR A SECOND
CAUSE OF ACTION AGAINST DEFENDANTS, AND EACH OF THEM, FOR VIOLATIONS OF
BUSINESS & PROFESSIONS CODE SECTION 17500, ET SEQ., ALLEGES:
49. Plaintiffs, and each of them, incorporate
by reference each and every paragraph of the General Allegations as though set
forth in full in this cause of action.
50. Plaintiffs
are informed and believe and thereon allege that KAISER has violated the
provisions of Business & Professions Code section 17500, et seq., by
making, disseminating or causing to be made or disseminated from this state,
before the public, statements concerning the services it offered to provide
which statements were untrue or misleading and which statements KAISER knew, or
in the exercise of reasonable care should have known, were untrue or
misleading, or disseminated or caused to be disseminated such advertising with
the intent not to sell such services as advertised.
51. Accordingly, plaintiffs, on behalf of the
general public and pursuant to Business & Professions Code section 17535,
hereby seek the following remedies with respect to KAISER’s false, fraudulent
and misleading advertising as alleged above:
a. An injunction against defendants, and
each of them, precluding them from engaging in these unfair business practices
in the future;
b. Restitutionary relief as determined to be
appropriate by the Court;
c. Any other and further equitable relief
deemed necessary by the Court, pursuant to the power granted to it under
Business & Professions Code section 17535 including, without limitation,
disgorgement of illegally-gained profits; and,
d. Reasonable attorneys' fees and costs upon prevailing in the request for injunctive and/or equitable relief.
THIRD CAUSE OF ACTION
(Violations of the Consumer Legal Remedies
Act)
PLAINTIFFS AUDREY TIMMIS, LINDA GUDINO,
WINSTON YARBOROUGH, MARY O’DONNELL, SHIRLEY MILLIGAN AND MARY “POLLY” CARGILE FOR A THIRD CAUSE OF
ACTION AGAINST DEFENDANTS, AND EACH OF THEM, FOR VIOLATIONS OF THE CONSUMER
LEGAL REMEDY ACT, ALLEGES:
52. Plaintiffs Audrey Timmis, Linda Gudino,
Winston Yarborough, Mary O’Donnell, Shirley Milligan and Mary “Polly” Cargile
incorporate by reference each and every paragraph of the General Allegations as
though set forth in full in this cause of action.
53.
Plaintiffs are informed and believe and thereon allege that the actions
by KAISER alleged in this action constitute violations of the provisions of the
Consumer Legal Remedy Act (“CLRA”) including, without limitation, Civil Code
section 1770, subdivisions (5), (7), (9), (14) and (16).
54.
Because the violations of the CLRA as alleged have resulted in cost
savings to KAISER, KAISER’S members have been forced to pay excessive amounts
for the medical care, treatment and coverage contracted for under KAISER’s
plans. As such, KAISER should be
required to rebate to its members the savings generated by KAISER through the
use of this unfair business practice.
55.
Plaintiffs hereby bring this cause of action on behalf of themselves and
other consumers who are similarly situated pursuant to Civil Code section
1781. The class, for purposes of this
action, is defined as each person who has been enrolled as a member of KAISER
during the last four years. This matter
is brought on a class action basis on the grounds that:
a. It
is impracticable to bring all members of the class before the Court;
b.
The questions of law or fact common to the class are substantially
similar and predominate over the questions affecting the individual members;
c.
The claims or defenses of the representative plaintiffs are typical of
the claims or defenses of the class; and,
d.
The representative plaintiffs will fairly and adequately protect the
interests of the class.
56. Plaintiffs, on behalf of themselves and all
others similarly situated, therefore seek an order awarding damages pursuant to
Civil Code section 1780 including, without limitation, actual damages in an
amount to be determined at the time of trial, injunctive relief to preclude
KAISER from dispensing unscored tablets with instructions to its members to
split the tablets or scored tablets except for the limited purpose of dose
titration, damages and/or restitution of property in an amount to be determined
at the time of trial; and costs and attorneys’ fees pursuant to Civil Code
section 1780(d).
57.
Plaintiffs are senior citizens as defined in Civil Code section 1761 and
hereby seek, in addition to the other remedies alleged herein, an additional
penalty pursuant to Civil Code section 1780(b) and seek such penalty on behalf
of themselves and the other class members who are also senior citizens or
disabled persons as defined in Civil Code section 1761.
58. Defendants' conduct described herein was
intended by the defendants to cause injury to plaintiffs or was despicable
conduct carried on by the defendants with a willful and conscious disregard of
the rights of plaintiffs, or subjected plaintiffs to cruel and unjust hardship
in conscious disregard of plaintiffs’ rights, or was an intentional
misrepresentation, deceit, or concealment of a material fact known to the
defendants with the intention to deprive plaintiffs of property, legal rights
or to otherwise cause injury, such as to constitute malice, oppression or fraud
under California Civil Code section 3294, thereby entitling plaintiffs to
punitive damages in an amount appropriate to punish or set an example of
defendants.
59. Defendants' conduct described herein was
undertaken by each corporate defendant's officers or managing agents,
identified herein as DOES 1 through 100, who were responsible for claims
supervision and operations, underwriting, communications and/or decisions. The aforedescribed conduct of said managing
agents and individuals was therefore undertaken on behalf of the corporate
defendant. Said corporate defendant
further had advance knowledge of the actions and conduct of said individuals
whose actions and conduct were ratified, authorized, and approved by managing
agents whose precise identities are unknown to plaintiff at this time and are
therefore identified and designated herein as DOES 1 through 100, inclusive.
WHEREFORE, plaintiff prays for judgment against
defendants, as follows
AS TO THE FIRST CAUSE OF ACTION:
1. For injunction against defendants;
2. For any other and further equitable relief deemed necessary by the Court, including, without limitation, restitutionary relief and/or disgorgement of illegally-gained profits;
3. For attorneys' fees and costs upon prevailing in the request for injunctive and/or equitable relief;
AS TO THE SECOND CAUSE OF ACTION
4.
For injunction
against defendants;
5. For any other and further equitable relief deemed necessary by the Court, including, without limitation, restitutionary relief and/or disgorgement of illegally-gained profits;
6. For attorneys' fees and costs upon prevailing in the request for injunctive and/or equitable relief;
AS TO THE THIRD CAUSE OF ACTION
7. For actual damages in an amount to be
determined at the time of trial;
8. For restitutionary relief;
9. For injunctive relief;
10. For penalties pursuant to Civil Code
section 1780(b);
11. For punitive damages;
12. For costs and attorneys’ fees pursuant to
Civil Code section 1780(d);
AS TO EACH CAUSE OF ACTION
13. For
costs of suit incurred herein; and
14. For such other and further relief as the Court may deem just and proper.
Dated: April 22, 2001
ROBINSON, CALCAGNIE & ROBINSON
TRIAL LAWYERS FOR PUBLIC JUSTICE
DAVIS LEVIN LIVINGSTON GRANDE
By: _____________________________
MARK P. ROBINSON, JR.
SHARON J. ARKIN
ARTHUR BRYANT
Attorneys for Plaintiffs