Mass. Jury Faults Doctor in HMO Death Suit

August 12, 2004

A jury awarded $1 million to the family of a man whose stomach cancer was overlooked by a Norwood doctor in a malpractice case that lawyers say exposes physicians’ incentives to limit care to HMO patients.

Kimiyoshi Matsuyama of Sharon, Mass. died of gastric cancer in 1999. Dr. Neil S. Birnbaum, a member of the board of directors at Dedham Medical Associates, was found negligent by a Norfolk Superior Court jury last week.

Matsuyama visited Birnbaum six times over four years with stomach pains, but was told to take over-the-counter remedies such as Pepcid, according to trial testimony reported in the Boston Herald.

Birnbaum didn’t order diagnostic tests until less than five months before Matsuyama’s death. It was then discovered that Matsuyama had cancer over 70 percent of his stomach.

“This is the pattern of a physician brushing someone off,” Max Borten, a doctor and lawyer who represented Matsuyama’s family, told the Herald. “And when you look at the contracts Dr. Birnbaum was working under, you see he had financial rewards for not ordering more extensive testing.”

Under contracts with Harvard Pilgrim Health Care Inc., Dedham Medical stood to gain annual bonuses for keeping prescription costs down. Incentives were also available for curtailing hospitalizations and diagnostic tests.

The contracts never required Dedham Medical to hold back care in the name of profits, the Herald reported, and the suit didn’t make allegations against Harvard Pilgrim Health Care.

Birnbaum, who has no disciplinary record with the state Board of Registration in Medicine, strongly denied at trial that there was any financial motive behind his treatment of Matsuyama. Birnbaum referred questions to his lawyer, who did not return a call to the Herald. Dedham Medical also did not return a call.

The jury deliberated two hours and awarded $160,000 for Matsuyama’s pain and suffering, and $875,000 for losses suffered by his wife and son.

“It doesn’t bring Kim back, but hopefully doctors will be a lot more careful in the future,” said widow Robin Matsuyama.

Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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