March 13, 2000 12:00 PM

Cynthia Herdrich didn’t know what was wrong with her when she arrived at Carle Hospital in Urbana, Ill., that afternoon in March 1991—only that she had a mass in her abdomen. After an ultrasound, the radiologist delivered the diagnosis: a burst appendix that had abscessed. “The next thing he said was, ‘How come you haven’t been to a doctor?’ ” recalls Herdrich, 41, then a legal secretary. “I said, ‘I have. I’ve been twice.’ ”

In fact it had been two full weeks since she had visited her Bloomington, Ill., physician, complaining of severe abdominal pain. Herdrich says that the doctor, Lori Pegram, misdiagnosed her and that the Carle Clinic HMO’s cost-cutting policy forced a delay in tests that might have detected her life-threatening illness. Now, Herdrich’s case against Carle has gone all the way to the U.S. Supreme Court, whose ruling, due in July, could give 125 million Americans the right to sue their HMOs in federal courts. “Your doctor has a conflict of interest,” says Herdrich’s lawyer James P. Ginzkey. “On the one hand are your healthcare considerations, and on the other are her pocketbook considerations.”

Herdrich’s medical nightmare began the morning of March 1, 1991, when she awoke with such intense abdominal pain that by the time she got to Pegram’s office that afternoon she could barely stand. “I was bent over at a 90-degree angle,” she recalls. But Pegram told her she just had a urinary tract infection and prescribed antibiotics. By chance, Herdrich had previously scheduled a physical exam with Pegram six days later. That was when the doctor told her she didn’t have a urinary tract infection after all. Pegram suspected she had an ovarian cyst and suggested a sonogram. Herdrich wanted the test immediately, but Pegram told her she would have to go to the HMO’s hospital in Urbana, 50 miles away. The first appointment was eight days later.

Only then did the radiologist finally detect the burst appendix. After emergency surgery, Herdrich’s husband, Rick, 41, an insurance underwriter, spoke to the doctor who operated. “He said when they opened Cindy up, it was like somebody who’d had a grenade go off.”

Soon after, the lawyer Herdrich worked for suggested she see a malpractice attorney. “I survived, I was doing fine,” she says. “But I didn’t want anybody else going through what I did.” In October 1992 she sued Pegram (who has declined comment) and the Carle Clinic for malpractice; she later sued the HMO for fraud and bad faith, arguing that the company had failed to tell her its doctors received a year-end bonus if they kept costs down by limiting diagnostic tests and treatments to the HMO’s facilities. “This is a problem with the HMO system,” says Ginzkey. “There’s an incentive to commit malpractice.”

Though in 1996 a Peoria federal jury awarded Herdrich (who in 1993 moved with Rick and their two sons to Loveland, Colo.) $35,000 for malpractice, a federal judge threw out the suit against the HMO on the ground that the federal law governing employer-sponsored insurance and pension plans did not allow it. After an appellate court overturned that finding, the HMO appealed and the Supreme Court took the case, hearing oral arguments on Feb. 23. Carter Phillips, who argued the HMO’s case, says HMOs ought to be able to contain costs and that the threat of malpractice suits is enough to keep doctors in line. “Too much unnecessary care makes medical costs spiral,” he says. “Patients shouldn’t-worry what motivates doctors.”

A ruling for Herdrich would send the case to trial—and open the gates for others to sue their HMOs. Though the law prohibits her from further monetary compensation, Herdrich says the experience has made her a more cautious patient. “People should ask their HMO if it has [a cost-cutting] incentive clause and what it is,” she says. “Don’t just assume you will get adequate care.”

Thomas Fields-Meyer

Vickie Bane in Loveland, Brian J. Karem in Washington, D.C., and Lorna Grisby in Chicago

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