By Jim Schutze
By Rachel Watts
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In even his friends' views, Birenbaum always has had a high opinion of his own skills--which has caused him problems from the start. "He seems to be a little overconfident, which has made him some enemies," says Anderson.
"There's a bravado, an outspokenness--diplomacy has never been his strong suit," says Dr. Eugene Wysznski, an oncologist who has known Birenbaum since the 1970s.
At the same time, Birenbaum is open to other doctors' opinions of medical matters, generous to a fault--he throws a huge Christmas party--and dogged as anyone.
A few years ago, for instance, when his sons were playing football at Lakehill Preparatory School, a private school in Lakewood, Birenbaum found a way to help out a bit. He underwrote five scholarships to bring in a few ringers and beef up the team, several parents recall.
"His personality is diamond-shaped; he's multifaceted," Wysznski says. "He is a very complicated gentleman."
According to an analysis of his tax returns prepared for a later lawsuit, Birenbaum's personal income grew from $135,222 in 1986 to more than $1 million in 1989, and $960,000 in 1990.
That's when the insurance carrier's complaints of overcharging first emerged.
Among others, Birenbaum saw patients from the J.C. Penney Co., United Parcel Service, and Texas Instruments, all of whom were covered under Aetna health plans. Their bills were reviewed by Dr. Eugene Whitley, a Fort Worth emergency-room doctor and Aetna consultant.
Before long, Birenbaum was complaining to insurance officials about Whitley, and Whitley, backed up by Aetna, was complaining to the Texas State Board of Medical Examiners about Birenbaum.
In Birenbaum's version of events, as summarized in his most recent lawsuit, the beef started when he attempted to get Aetna's consent to admit a critically ill patient to the emergency room. Whitley refused, and a heated argument ensued, Birenbaum contends.
He says he began questioning Whitley's expertise as a family practitioner to make decisions in the matter because neither was he an oncologist nor had he consulted one. On another occasion, Birenbaum alleges in court papers, "Whitley criticized Birenbaum's efforts to provide treatment to a critically ill AIDS patient, advising Birenbaum that he should have 'let the patient die' rather than try to treat his illness."
Birenbaum lodged a complaint against Whitley and Aetna with the Insurance Commissioner of North Carolina, which had jurisdiction over the patient's health plan, and the battle was on.
An Aetna spokeswoman, Kelli Brady, and a Dallas attorney who represented the company and Whitley, declined comment on the doctor, citing a confidentiality agreement that Birenbaum has decided to break. Still, Aetna's problems with Birenbaum are amply detailed in documents filed in the case the company initiated against him at the Texas medical board.
The company's complaint centered on medical bills for seven of Birenbaum's patients--all insured by Aetna, all of whom have since died.
In addition to billing a regular daily charge for a hospital visit, Birenbaum charged many of these patients additional fees for such things as isolation (for which a physician puts on gloves and a mask to prevent the spread of germs), intravenous feeding known as hyperalimentation, chemotherapy, and so-called platelet infusion. The last is the reintroduction of clotting factors into the bloodstream of a cancer patient whose own platelets have been destroyed by chemotherapy.
In the case of AIDS patient Vince Vignola of Dallas, for example, the medical board concluded that a reasonable charge for the day Vignola was admitted to the hospital would have been $125 for all the services Birenbaum performed: treatment planning, hyperalimentation, and chemotherapy.
Birenbaum charged $1,005, including a $250 fee for consulting with himself, and various charges for chemotherapy--billed per chemical agent--and hyperalimentation, the board found. Dr. Stephen Cohen, an oncologist in private practice in San Antonio, testified that his patients' illnesses were as complicated as those of Birenbaum's seven patients, and that he charged significantly less than Birenbaum. "If an insurance company paid [Birenbaum's] bills routinely, based on these charges, I'd be flabbergasted," Cohen said. "I'm not happy about his bills, so I can imagine the insurance company that's paying it has got to be livid."
Birenbaum, who hired Austin lawyer Dan Bishop II, one of the best medical law specialists in the state, to conduct his defense, scored an initial victory in the disciplinary process.
Board hearing examiner Rachael Martin recommended that the case against Birenbaum be dropped for some very fundamental reasons. She found that Whitley, the chief complainant, lacked credibility because he had no expertise in oncology and because of his relationship with Aetna. Whitley had testified that Birenbaum was rude, obnoxious, and insistent on the telephone and that he had become "mad" at the doctor, which was one of the incidents he said prompted him to take action in the first place.
The hearing examiner found that another of the board's chief witnesses, Dr. Lester Hoaglin, a retired oncologist, undercut the case against Birenbaum when he testified that he once billed a patient $3,000 for a one-hour consultation simply because the patient was wealthy and able to pay.
Martin also agreed with Birenbaum's contention that oncologists may charge more than other physicians because of the amount of study required in their rapidly changing field of medicine and the amount of time they must spend monitoring treatment. She concluded: "It is not unusual for a physician to charge a patient a higher fee than the amount the insurer will reimburse or consider reasonable under its contract with the insured patients, and such a practice does not constitute overcharging."
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