Modification: Futterman v. Kaiser Foundation Health Plan, Inc.

SUSAN FUTTERMAN et al.,

Plaintiffs and Appellants,

v.

KAISER FOUNDATION

HEALTH PLAN, INC.,

Defendant and Respondent.

No. A162323

(Alameda County Super. Ct. No. RG13697775)

California Court of Appeal

First Appellate District

Division Four

Filed June 6, 2023

ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT

BY THE COURT^*:

The petition for rehearing filed by respondent Kaiser Foundation Health Plan, Inc., is denied. The court orders that the opinion filed in this appeal on April 25, 2023 (and ordered to be published on May 17, 2023) be modified as follows:

1. On page 12, in the second paragraph, make the following changes: (1) in the second sentence (which begins with "Kaiser has no written or consistent policy"), insert at the beginning of the sentence the language "According to this evidence, plaintiffs contend,"; and (2) combine that sentence with the next sentence in the paragraph by replacing the period after "vacation" with a comma, and by replacing the language "In addition, Kaiser's policy" with the language "and its policy" so that the combined sentence reads:

According to this evidence, plaintiffs contend, Kaiser has no written or consistent policy to ensure that patients receive care when their psychiatrists or therapists are on vacation, and its policy that "any patient that has received any contact with our department in the last two years is not considered a new patient" poses a "barrier to patients receiving timely medically necessary treatment."

2. On page 13, in the first paragraph, in the second sentence (which begins with "Internal Kaiser documents show"), replace that beginning language with "This evidence, according to plaintiffs, includes internal Kaiser documents showing" so that the sentence reads:

This evidence, according to plaintiffs, includes internal Kaiser documents showing that the Plan's staffing recommendations are inadequate to provide what both the Plan and its medical groups consider necessary for optimal patient outcomes.

3. On page 19, in the second paragraph, in the second sentence (which begins with "As they have argued,"), insert after the first comma the phrase "the evidence permits an inference that" so that the sentence reads:

As they have argued, the evidence permits an inference that no determination of medical necessity for individual therapy was made by the Kaiser doctors because of Kaiser's standard and assertedly discriminatory practice of emphasizing group therapy over individual therapy without determinations regarding medical appropriateness of group therapy.

4. On page 19, in the second paragraph, in the fifth sentence (which begins with "Spivey was told"), insert at the beginning of the sentence the language "According to plaintiffs, the evidence shows" so that the sentence reads:

According to plaintiffs, the evidence shows Spivey was told that weekly therapy was "not available" at Kaiser and once her daughter no longer had weekly therapy, her condition worsened.

5. On page 20, in the paragraph that continues from page 19, in the next to last sentence (which begins with "She contacted her therapist"), replace the word "She" with the language "The evidence shows, plaintiffs contend, that she" so that the sentence reads:

The evidence shows, plaintiffs contend, that she contacted her therapist requesting urgent individual therapy but was told she could only schedule a "couple" appointments with her.

The modifications effect no change in the judgment.

BROWN, P. J.

Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Winifred Smith

Counsel: Siegel LeWitter Malkani and Jonathan H. Siegel, Latika Malkani, Laura Herron Weber for Plaintiffs and Appellants.

Manatt, Phelps & Phillips, Gregory N. Pimstone, Joanna S. McCallum, Joseph E. Laska for Defendant and Respondent.

*Brown, P. J., Streeter, J., Miller, J. (Associate Justice of Court of Appeal, First Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution)