Recent Law Gives Citizens Right To Sue HMO
The first lawsuit under the groundbreaking 1997 Texas law giving citizens the right to sue their Health Maintenance Organization for negligent treatment decisions was filed in October.
The suit alleges that NYLCare Health Plans denied adequate hospitalization to Joseph Plocica, who suffered from severe depression and suicidal impulses. As a result, the suit alleges, Plocica drank a half-gallon of antifreeze and died.
Texas is the only state to have enacted a mandate authorizing such negligence suits against health maintenance organizations. The Pennsylvania House recently passed an amended HMO “consumer bill of rights” aimed at giving HMO enrollees similar legal remedies. However, the bill is pending Senate approval.
Cases have been brought against managed care organizations prior to the Texas Law. However, the claimant’s burden in establishing the insurer’s liability is more difficult without any specific consumer protection legislation.
One of the most cited cases regarding managed care liability is Wickline v. State. In this case, the plaintiff received medical treatment through payments by Medi-Cal, a federally funded third-party medical payor. According to Medi-Cal’s pre-authorization procedure, Lois Wickline was cleared for surgery on an occluded abdominal aorta. After surgery, the treating physician requested an eight day hospitalization extension to further observe her condition. Medi-Cal granted a four day extension and denied coverage for further inpatient treatment.
After her release, the patient suffered an infection which resulted in a leg amputation.
The California Court of Appeal set forth the following standard of law:
The patient who required treatment and who is harmed when care which should have been provided is not provided should recover for the injuries suffered from all those responsible for the depravation of such care, including, when appropriate, health care payors, Third party payors of health care services can be held legally accountable when medically inappropriate decision result from defects in the design or implementation of cost containment mechanisms as, for example, when appeals made on a patient’s behalf for medical or hospital care are arbitrarily ignored or unreasonably disregarded or overridden.
In filing a precertification request or appeal based on the medical need for treatment, you may wish to cite supporting cases or statutes which remind carriers of their potential liability for poor treatment position. The best approach is to simultaneously file a letter of medical necessity from the treating physician and any other specialists involved in the patient’s care.
If you are unable to obtain such supporting documentation, you may wish to ask the physician’s office for medical literature which explains the need for more comprehensive treatment. Further, review the medical records and provide the carrier with specific references which support the need for treatment but might be easily missed by the reviewer, i.e. unusual drug reactions or documented history of noncompliance with outpatient instructions on the part of the patient.
Be sure to request the credentials of the medical reviewer. If the request or appeal is denied, ask that the review be conducted again by a medical professional with similar credentials as the person who provided the treatment. You may also request that the matter be reviewed by an outside reviewer not employed by the carrier.
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