Meet the Lawyer
By Celeste Fremon
Malpractice Who’s on Your Side
Mark Hiepler lost his sister to cancer after a managed care company refused to pay for a bone marrow transplant. Now he’s on a mission: to make HMOs as liable for malpractice as doctors are. And he’s got just the record-and the chutzpah-to do it.
It's December 21, 1993, the last week of a monthlong trial at the regal old country courthouse in Riverside, California. The marble-floored courtroom is overflowing with newspapers reporters, TV crews, and members of the public who have come to observe the closing arguments in a case that has unexpectedly drawn national attention. Most high-profile lawsuits have their stars, and in this trial it’s Mark Hiepler, the 31-year old attorney for the plaintiff. A tall, earnest man with clean-cut good looks who easily engages both cameras and jurors, Hiepler walks over to the jury box and begins to recount a parable of sorts: how a senior executive at Health Net redefined the Golden Rule.
Health Net, the third-largest health maintenance organization in the state of California, is the defendant in this case, accused of denying plaintiff Jim Fox’s wife, Nelene, a potentially lifesaving treatment. Hiepler has a personal stake in this particular trial: Nelene Fox was his sister. The suit charges Health Net with breach of contract, bad faith and intentional infliction of emotional distress. Hiepler’s impassioned depiction of the defendant’s wrongdoings has captivated the print and broadcast media for weeks.
The story he is about to tell hinges on a chance remark made in a pretrial deposition by Health Net’s medical director, physician Leonard Knapp. It seems Knapp declared that his company did business “according to the Golden Rule.” The son of a Lutheran pastor, Hiepler tells the jury that he fully expected the good doctor to expand on this by spouting New Testament maxims. He walks forward until he’s standing directly in front of the jurors, then continues. “But here’s what Dr. Knapp said. He said, ‘He who has the gold makes the rules.’”
“Objection!” shouts Lyle Swallow, Health Net’s lead counsel.
“Overruled,” snaps the judge.
“Hiepler knows he is grandstanding with this anecdote, since it’s hardly evidentiary; Knapp clearly intended his remarks as a joke." Yet to Hiepler that joke goes to the heart of the matter, legally and morally, especially in that Knapp made it only two days after Nelene had died.
Normally it’s all but impossible to sue managed care organizations for patient injury; a clause in the complex federal law known as the Employee Retirement Income Security Act of 1974, or ERISA, exempts employer-based benefit plans from state laws, including the tort laws that underlie medical malpractice lawsuit. Only a few categories of HMO clients may file damages against the organizations including church workers and government employees. Because Jim Fox is a public school teacher-that is, a government employee – he was eligible to sue Health Net.
Hiepler repeats the phrase one more time, his voice low and laced with fury.
"He who has the gold makes the rules.” There’s a long pause as he allows his gaze to move from juror to juror. “Isn’t that why we are here, ladies and gentlemen?” the attorney says finally. “Health Net has the gold. They wrote the rules. And then they interpret them against Jim and Nelene Fox.”
| A Medical Director Speaks Out |
Attorney Mark Hiepler has long asserted that HMOs often put financial gain ahead of patient care. Questions over the ethics of some managed care companies continue to surface, as seen in a first-person U.S. News & World Report article in March by physician Linda Peeno, a former HMO medical director. In this excerpt she talks about the conflicts of interest she felt as the final person to approve or reject requests for care. (Peeno was featured in HIPPOCRATES’ “Confessions of an HMO Medical Reviewer,” December 1977)
What is the value of a voice? I stare at the paper on my desk, trying to find a clue. One of the HMO nurses had brought me a letter from a doctor requesting a voice machine for his patient, a young woman who had suffered a rare and unusual brain stem stroke, shutting down the pipeline through which the nerve impulses controlling her voice travel. The letter is layered with colored Post-It-notes. One bright blue square says, ‘Approve this, and it will be your last!’
“I had started this new career full of enthusiasm. But what I found was the pressure was always there. Deny as much care as possible in order to cut costs. I couldn’t overcome the pressure to manipulate medical guidelines and contract language, and to push physicians toward some practices that endangered patient care. I was surprised to find that it made little difference if the company was for–profit or non profit. The basics of managed care were the same.”
Against her company’s wishes, Peeno says, she approved the voice machine for the paralyzed patient. She left her job soon afterward.
AT ONE TIME Mark Hiepler was deeply interested in politics. Indeed, his self-effecting ease in front of a crowd would make him a natural for a public office campaign. But after he graduated in 1988 from Pepperdine Law School in Malibu, California, tuition costs left him with a string of debts. So when a large Los Angeles firm offered him a position as associate, Hiepler took it and settled down to the business of insurance defense. Then in 1991, fate played him an unexpected card. His sister Nelene, at 38, discovered a lump in her breast that turned out to be malignant.
Hiepler and his sister had always been close despite their nine-year age difference. During Mark’s bachelor years, Nelene would give her lanky baby brother a thumbs-up (or down) on the young women he dated. While he was in law school and working three jobs on the side, she invited him to live at her house so he could stretch his limited finances. The day he passed the bar it was Nelene, the proud sister, who got to the mailbox first and handed Hiepler his letter of acceptance-then threw a party to celebrate his victory. “It’s great to have a lawyer in the family,” he remembers her saying, "I mean, in case we ever get into any trouble!”
Nelene was kidding about the trouble. Raised in a quiet Los Angeles suburb, Hiepler and his three sisters had enjoyed a cloudless Southern California childhood. But real adversity arrived in April 1992 when Nelene learned that, after two mastectomies and chemotherapy, her cancer had advanced to stage IV, a tumor that has obvious metastasis and usually isn’t curable. Her oncologist informed her that her only chance for long-term survival was a bone marrow transplant, a painful and risky operation with only a one in four success rate. If she did not have the surgery, the physicians said, she would be lucky to live five months.
Nelene and Jim immediately decided to go ahead with the $180,000 operation. It was too costly for them to afford on their teacher’s salaries, however, so they pulled out their contract with Health Net, their insurance carrier. They were relieved to find out the coverage booklet indicated that the transplant would be fully paid for, as long as it was recommended by her oncologist. But when Nelene prepared to go forward with the surgery, Health Net announced that it would not cover the transplant after all, labeling the procedure “experimental.”
Panicked, Nelene asked her brother to ask the HMO to reconsider. Hiepler sent a firm letter but friendly letter. “We were really naïve,” he says. “We thought they’d agree and that would be the end of it.” At first Health Net merely stonewalled. Then, although Nelene's condition hadn’t changed, her oncologist unaccountably changed his mind and withdrew his recommendations for the transplant. Hiepler later found out-through deposition and company phone records-that occurred directly after a conversation the oncologist had with Health Net’s associate medical director, Clifford Ossorio. Hiepler was only able to prove that the discussion had been about “financial and other unknown issues,” but he was convinced that Ossorio had pressured Fox’s oncologist to retract his support.
Realizing he would have to force Health Net’s hand, Hiepler quickly filed an injunction on his sisters behalf. With the aid of his wife, attorney Michelle Hiepler, he began researching company policies in the hope of determining why the coverage had been denied and finding a way to make Health Net pay. While her brother dug around in the HMO’s corporate closets, Nelene-along with her family, friends, and neighbors-began a fund-raising blitz. They organized car washes, bake sales, bingo parties, anything that might bring in the cash needed to pay for the procedure; the Foxes also took out as much as they could in loans. Finally, in August 1992-just under five months after her doctor has first recommended the surgery-the entire $180,000 had been raised, and Nelene received the transplant. Yet by this time her cancer had metastasized aggressively. In April 1993 Nelene Fox died.
Devastated by the loss of his sister and enraged by what he viewed as Health Net’s callously arbitrary policy, Hiepler pursued the lawsuit still more fervently. “After Nelene died I think they expected me to just melt away,” he says.
He didn’t. By May 1993 Hiepler had armed himself with an arsenal of damaging facts unearthed through a vigorous legal discovery process. He had amassed interoffice E-mails and internal documents, and taken depositions from any and all Health Net employees whose job might have even a tangential bearing on his sister’s case, including the company’s president. Dredging through stacks of company memos and deposition transcripts, Hiepler “followed the money.” Eventually he was able to decipher the structure of Health Net’s executives reward plan: He found that Ossorio, the administrator who had made the suspicious call to Nelene’s oncologist, received a year-end bonus that was tied directly to “savings,” in other words the number of procedures he denied patients.
Just before the trial was to begin, Hiepler got a telephone call from a sales executive at Health Net who had read about the lawsuit in the paper. The executive, Janice Bosworth, was also a breast cancer patient, she said, with a case nearly identical to Nelene’s. Bosworth told Hiepler that Health Net had approved a bone marrow transplant for her just months before denying his sister’s surgery.
Although Bosworth still worked for Health Net, she readily agreed to testify on behalf of the plaintiff. “I thought [Health Net] learned their lesson from my situation,” she said later in her testimony at the trial. “But I think they need a message.”
The trial came to end just after Christmas, 1993. During closing arguments jury members were often visibly in tears, and Hiepler himself frequently had to stop and compose himself. “Sometimes we wonder if our vote makes any difference,” he told the jury on the final day. “Well, today your vote has a chance to make a big difference. In the corporate boardrooms of every insurance company and every HMO in the United States, they’re watching. They’re listening. They’re wondering what kind of message you are going to send.”
Hiepler declined to ask the jury for a specific dollar amount in damages. “I just wanted them to pay all the people who had given money toward Nelene’s treatment,” he says. Instead of suggesting a figure he told them, “You decide what it’s going to take to punish a billion-dollar company.”
The Riverside Country jurors took less that 24 hours to return with their message: a staggering $89.3 million verdict, one of the largest judgment ever levied against an American health care provider.
News of the verdict sent tremors though HMO boardrooms. Perhaps the most immediate effect was that the government and the managed care industry started looking far more favorably upon covering bone marrow transplants for breast cancer patients. In September 1994 the U.S. Office of Personnel Management ordered all 350 health plans covering 9 million federal employees, retirees, and dependents to start paying for bone marrow transplants in breast cancer cases-or risk losing the government business.
In the wake of the publicity surrounding the case, Texas, New Jersey, and six other states enacted laws or regulations that permit consumers denied any medical treatment to appeal the health plan’s decision to an independent reviewer. Several bills were also introduced in the California state legislature concerning experimental medical treatments. The resulting legislation, which passed in 1997 and will take effect in July, establishes a terminally ill California patient’s right to binding independent review in a situation like Nelene Fox’s. In January 1997 New York’s Empire Blue Cross and Blue Shield announced it would voluntarily institute a similar policy.
Fox v. Health Net also catapulted Mark Hiepler to prominence in the area of managed care lawsuits. A nonstop stream of people with HMO grievances began phoning Hiepler’s office for help. Interestingly, not all of the callers were patients. “What surprised us most was out of approximately 120 new case calls we got a month, at least 10 percent were from doctors,” Hiepler says. “They called to ask us how their clients could get what they needed from their HMOs”
In the five years since his sister’s death Hiepler has handled more than 140 health care-related cases. Some clients could pay attorney’s fees; many could not. Yet all but three cases were concluded in the plaintiff’s favor before they reached trial or arbitration. And each of the three that landed in the courtroom turned out to be a high profile media event that has arguably altered the way HMOs do business.
Hiepler’s legal evangelism has hardly endeared him to managed care and its advocates, who tend to characterize him as a clever ambulance chaser with a huge ax to grind. “The public perception is that litigation is rife because the industry is corrupt,” Mark G. Hyde, chief executive officer of the HMO Lifeguard, told reporters at a 1996 managed care symposium in San Francisco. “But I think it’s notable that [three of the major judgments against HMO doctors] were produced by one lawyer.”
It is perhaps for precisely this reason that a significant number of physicians - many of whom had long viewed plaintiff’s attorneys as the enemy - have begun to regard Hiepler as an ally doing needed battle with the managed care behemoth. He has been asked to speak at more than a hundred medical conventions and seminars. After each speech a dozen or so doctors inevitably rush up to thank and encourage him. Hiepler recalls an oncologist who took him aside at a recent event and said, “We see you”-meaning Hiepler and the other lawyers who are taking on the HMOs-“as the only way we’re going to get our practices back.” Roy B. Jones, director of the bone marrow transplant program at the University of Colorado Health Sciences Center, is among the physicians who feel that Hiepler’s role is significant. “We need to get medicine back to where it is a people profession, not a business profession,” he says. “The HMOs have asked doctors to deny the single most important characteristic of our profession, which is our ability to look at a patient and decide what kind of care is appropriate for that individual. Mark has made a singularly relevant contribution by using legal means to help get patient-appropriate care. He’s educating people to ask the fundamental question, Who does my HMO serve first-the patient or the stakeholder?”
IN HIS CRUSADE against HMO abuses Hiepler has received extensive media coverage. His cases have been written about in Time, Newsweek, and The Wall Street Journal, and he has appeared on dozens of radio and TV programs, including “20/20,” “Nightline,” “60 Minutes,” and “Donahue.” Yet for all his newfound visibility, he steers surprisingly clear of the trappings associated with a high-profile law practice. His car is five years old. He buys suits at deep discounts stores. Rather than leasing a chic office suite with a Beverly Hills or Century City address, the firm of Hiepler & Hiepler makes its home on the 15th floor of a plain-wrap commercial complex in the freeway hinterlands of Oxnard, California.
The most prominent decorative touch in Hiepler's waiting room is a navy blue football helmet covered with a few dozen signatures. “That’s from a fundraiser we had for my sister,” Hiepler says with an affectionate glance at the helmet. “At this one football game they dedicated the field to her, and all the kids in the team signed the helmet.”
The law firm keeps its expenses low so that it can service its large volume of pro bono requests.
With four attorneys plus seven other staff members and six law students, overhead is always a worry. Hiepler explains that the firm tries to operate frugally and keep a lot of working capital available. “That way, when the right cases come along, we can fully support them,” he says.
By the “right” case, he is referring to long-term, labor-intensive litigations that end up in court. These are the lawsuits that Hiepler hopes will point beyond themselves toward larger issues. And if Fox v. Health Net gave managed care a wake-up call. Hiepler’s next two big cases made sure the HMO’s stayed wide awake.
In the case of deMeurers v. Health Net, Christy deMeurers breast cancer, like Hiepler’s sister, had metastasized. Christy’s oncologist recommended a bone marrow transplant and, as with Nelene, Health Net denied coverage. When Hiepler discovered that Ossorio, the Health Net executive believed to have coerced Nelene’s oncologist, had also made a similar call to Christy deMeurers’s doctor, he and law partner James McGinley pursued the case with near religious fervor. A Los Angeles medical center paid for the transplant, but before the case would proceed further, Christy deMeurers died at 35.
However, Hiepler’s firm continued on her behalf. This time the loophole in ERISA prohibiting most people from suing HMOs meant that the case went to arbitration rather than a court trial. The arbitration panel that heard the case in October 1995 determined not only that Health Net should have paid for the transplant but that the company had intentionally inflicted emotional distress on the deMeurers family. It awarded Christy’s husband, Alan, and his children more than $1 million; the verdict also forced Health Net to pay for the transplant.
| Checking HMO Power Through Outside Appeals |
Since Fox v. Health Net, eight states have enacted laws or regulations to protect consumers from any arbitrary denials of care by establishing a process for independent review. The American Medical Association, which tracks state legislation regarding health care issues, recently released a report on the developments. Among the laws:
ARIZONA - In 1997 the state legislature passed a bill that permits health care appeals for decisions made by health care insurers and utilization review agents. The new law allows any member of an HMO or other health plan, after exhausing the plan’s internal grievance process, to initiate an independent review of a negative decision.
CONNECTICUT - As of 1997 managed care patients denied any medical service can appeal to the state insurance commissioner, who assigns the case to an impartial medical expert for review.
FLORIDA - A 1997 law allows enrollees of HMO and other health groups to appeal denials of care to the state’s health care administration.
TEXAS - In the most important legislation of its kind, a law went into effect in May 1997 that allows managed care enrollees to sue their health plans for negligent decision making. The law also permits members to appeal any denials of care upheld by a plan’s review agents.
“The AMA favors external review,” says Donald J. Palmisano, a member of the association’s board of trustees and a practicing surgeon in New Orleans. “If a physician is overridden after recommending a treatment, then it’s only fair to have an impartial physician in the same speciality review the case. We don’t think medical decisions should be made by accountants or people watching the bottom line.”
Hiepler’s next case, Ching v. Gaines, illuminated the HMO problem from a different angle. In August 1992 Joyce Ching 34, went to see her primary care physician after she began suffering from stomach and abdominal pain, abnormal bowel movements, and rectal bleeding. Her symptoms persisted for weeks. Ching was worried that they signaled colon cancer, even though few people develop the disease at so young an age, her father had died of stomach and rectal cancer. She and her husband, David-both of whom were enrolled in the Metropolitan Life HMO-repeatedly requested a barium enema and a referral to gastroenterologist. During a pelvic exam her physician, Elvin Gaines, felt what he termed a mass posterior. Although he didn’t do a rectal exam, he ordered an ultra sound, and the results convinced him that the mass resulted from uterine fibroids; the other problems, he thought, stemmed from a common ailment such as irritable bowel syndrome. Another physician at the medical group ordered blood and stool tests. Over the next two and a half months David frequently saw his wife curled up in excruciating pain, but Gaines denied the couple’s many entreaties to see a specialist.
In late October, after an angry exchange with David Ching, Joyce’s physicians finally ordered a barium enema, which turned up an ominous constricted area in her colon. Joyce was referred to a gastroenterologist, whose sigmoidoscopy indicated a blocked colon. He rushed her to the hospital, where a biopsy revealed cancer. Just prior to surgery the cancer penetrated her bowel wall, drastically lowering Joyce’s chance for survival. The surgeon removed a fist-sized tumor. Despite other surgeries, Joyce Ching died in April 1994.
On the surface Ching v. Gaines was a simple medical malpractice suit; Joyce Ching’s doctors may or may not have made some catastrophic mistakes. Met Life itself had not refused her treatment and was not named in the suit. However Hiepler believed Ching’s tragedy was emblematic of a much larger problem endemic to the HMO system as a whole. While researching his sister’s case he had become familiar with an HMO practice called capitation, an arrangement almost never disclosed to patients. Under this system HMOs pays a contracted doctor or a medical group a set amount of money per enrollee-say $25 a month-no matter how sick a patient becomes. In many cases that means a physician or medical group must cover the expenses of any outside tests or referrals to specialists, often out of the pool of HMO payments for patients requiring no treatment. Although capitation was designed to save money by discouraging unnecessary services, Hiepler saw it as a clear conflict of interest.
Hiepler had come to believe that capitation was destroying the traditional doctor-patient relationship by forcing the physician to consider costs above the well-being of the patient. “The HMO's have put themselves between the doctor and the patient with gag clauses, capitation, and bonus programs,” he says. Through a court order, he got hold of the contract Joyce Ching’s physician had with Met Life and learned that Joyce’s doctor received a payment of roughly $27 per month per patient. (In the first few weeks of Ching’s illness, her doctor used up nearly ten times that amount simply by ordering a sonogram.) Moreover, her medical group’s CEO conceded on the witness stand that its doctors lost the money when they referred patients outside the group for a test or consult. Although the HMO doctors involved adamantly denied that money had in any way affected patient care, Hiepler contended that cost-cutting, as well as carelessness, had doomed Joyce Ching. “The loud clamor of the defendant’s assembly line practice of medicine kept them from hearing, noticing and diagnosing what was a loud alarm of cancer,” he told the jury.
Placing capitation itself on the trial, Hiepler and McGinley charged Ching’s HMO physicians with medical malpractice as well as an action new to doctor-defendants that Hiepler called breach of fiduciary duty; the doctors had, he charged, placed their own financial interests over the needs of Joyce Ching. At the very end of the trial the judge decided to strike the breach action, stressing that the appellate and supreme courts should rule on it, but both the jury and the press packed in the courtroom understood Hiepler’s point perfectly. After two days of deliberation the jury awarded Ching’s family $2.9 million, capitation had been added to the vocabulary of the medical consumer, and another explosive message had been lobbed in the direction of HMOs. (Under California’s Medical Injury Compensation Reform Act, the court could not actually give the family more than $250,000 for pain and suffering; the award ultimately totaled $700,000.)
The media coverage of Ching put capitation, virtually unknown outside the HMO community, on the firing line. “The Ching case had helped make the practice a top target of consumer groups, politicians, and doctors,” HIPPOCRATES reported in 1996. Health care activists began pushing for mandatory disclosure statutes. “In the old fee-for-service system, people knew where their physician’s incentives lay,” Hiepler explains. If doctors performed this or that treatment, they made money. So people knew what to look out for. With capitation, they don’t. Unless somebody tells them, they don’t know that when their doctor is considering whether to order up an expensive treatment for their kid, he may be in the untenable position of having to choose between their family and his own.”
A 1995 poll by California Physician supports Hiepler’s position. Of 1,122 doctors surveyed, nearly 20 percent said that capitation issues “frequently” influenced their medical decisions. Another 59 percent said their decisions were “sometimes” colored by reimbursement concerns.
Though individual doctors occasionally occupy the role of the bad guy in Hiepler’s trials, he credits physicians as his partners in each of his litigations. “The doctors are the ones who’ve made it possible to get these judgments,” he says. It is a unique alliance. We work with some of the best experts in the world, who only testify because they feel strongly about these issues. And the degree to which the doctors will stand up for what they feel is right dictates what we can accomplish.”
THE DEMEURERS and Ching cases, underscore another of Hiepler’s targets: the law that shields HMOs from malpractice lawsuits. Managed care companies have worked hard to armor themselves against the big-ticket legal verdicts that have long plagued the medical profession, and among their most effective shields is the protective clause in ERISA, originally passed to keep small business retirement funds from being gutted by large legal judgments. It was this clause that tied Ching’s and deMeurers’s hands: Not exempt from the law, they were powerless to sue their HMOs. Not surprisingly, the ERISA clause is one of the aspects of managed care that Hiepler would like to do away with.
“Most patients assume that if their HMOs denied them a crucial treatment, their families will be able to sue the company for damages,” he says. “What they don’t know is that if they have acquired their health coverage as an employee benefit, because of ERISA they can only sue the HMO for the cost of the treatment that was denied.” He shakes his head in frustration. “It’s like saying that if you’re driving a car with a defective gas tank and the gas tank explodes, killing your wife and kids, you can only sue the car company for the cost of the tank.” He grimaces. “That’s crazy. With the capitation system, the financial burden is transferred to the doctor. With ERISA, the legal risk is transferred to the doctor. So even if the HMO is completely negligent, and the worst happens, you’re left without a remedy. That’s one of the biggest tragedies for doctors. A lot of times they end up being the defendant, when it really should be the HMO.”
Hiepler is also infuriated by the mandatory arbitration clause embedded in many managed care contracts. Arbitration is generally thought to work against the plaintiffs in that arbitration panels typically return far smaller judgments, as in the deMeurers case. Where the punitive award was a fraction of that in the Fox case. Arbitration also limits discovery and often confines each party to one deposition, which Hiepler views as grossly unfair. “In Nelene’s case,” he says, “I could dig in to those records of the executives’ bonuses, which make a big difference. In arbitration that’s not possible.” He also suggests that health care arbitrators cannot help but give HMOs, which constitutes the main source of their business, the benefits of the doubt.
“What all this adds up to,” he concludes, “is that HMOs are making the decisions about treatment but aren’t held accountable for their decisions.”
To fight what he views as a system unfairly weighted on the side of HMOs, Hiepler has invented new legal theories or taken ones that already exist and transplant them to health care delivery. For the deMeurers case, Hiepler concocted a cause of action he called intentional interference with the doctor-patient relationship.
“The idea there,” he says, “is to give the doctor some extra help so he can say, “Look, you guys are interfering with the doctor-patient relationship. And that’s a tort. You could get hammered for this if I tell anybody. So back off, and let me use my own judgment. And don’t retaliate.’” For a case coming to court near the end of the year, he has fashioned yet another legal missile. He is representing a Santa Barbara, California, family that is suing the Orange County HMO PacifiCare for “torturing” their infant son when it refused to provide the urgently needed home health care services repeatedly recommended by their pediatrician. This “torture” tort has already attracted media attention that, in turn, seems to have rattled a few HMO cages. “I’m getting pediatricians, from all over who tell me that, all of a sudden, the home care requests aren’t being denied anymore,” Hiepler says.
Not surprisingly, Hiepler’s aggressive courtroom tactics have won him many critics as well as fans. Attorney Mike Gonzalez led the defense in the Ching case and is friendly with Hiepler. “But I also think he’s wrongheaded a lot of the time,” says Gonzalez. “Mark is really sharp and media savvy, and believes in what he is doing. But he’s painting an extreme picture. He sees wrongdoing everywhere he looks. I’ve been in practice for 13 years. If all this bad stuff was so prevalent, wouldn’t I have seen it?” He sighs. “Mark gets up there and looks like Jimmy Stewart and the juries just love him. But that does not mean that he’s always got the facts on his side.”
Hiepler is the first to admit that health care law has become a crusade for him. “It’s a calling, “ he says. “I mean, one of the best moments I ever had was when I went to the grocery store one night in the middle of the Ching trial and a lady said, ‘Are you the guy who is going to trial against the HMO?’ I said I was. The she said, ‘I never knew about capitation. But I just changed my health insurance because of what I learned from you.’” He shrugs with mild embarrassment. “I admit it. That felt great.”
Hiepler also confesses that he enjoys the David and Goliath aspect of the whole thing. “There’s that part if me that likes to go up against these guys who’ve hired five lawyers from some big, fancy, arrogant firm,” he says. He describes a recent motion at which two law firms and seven attorneys showed up to represent the defendant. “And then the judge turned and asked, ‘Who’s here for the plaintiff’” Hiepler pantomimes a child raising his hand in class. “‘It’s just me.’ ‘Anybody else?’ ‘No. Just me.’” He grins. “We won that motion.”
It’s after six on a Tuesday evening, and Mark Hiepler stared out his office window to the hills beyond. His face shows fatigue. He’d like to go home to see his four-year-old daughter and infant son while there’s still some daylight. But before he can leave he needs to call seven more people, each of whom has a family member in an emergency situation. “Here’s the truth,” he says. “If I could turn back time and have an afternoon with my sister again-and get rid of any of the benefits that have come to us-I’d do it in a heart beat.” He pauses. “But I can’t. So through the curse of Nelene’s situation, we’ve been sought out by a lot of people. And I think we’ve helped a lot of them. That’s her legacy.” His expression is optimistic once again. “And if she could see us now, you know what? She’d love every minute of it.”
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Celeste Fremon is a freelance writer in Los Angeles and the author of Father Greg & The Homeboys (Hyperion, 1995). She writes regularly for the Los Angeles Times Magazine.