Malpractice Consult: Can you be liable for an insurer's decision?

Key Points

Physicians are in the business of preventing and treating illness. Insurance companies, on the other hand, are in the business of pooling risk and making their profit from the difference between the premiums their subscribers pay in and the amount the companies pay out.

So while the ideal scenario for physicians is to do whatever it takes to ensure their patients' health using the most accurate tests and best therapy, the ideal scenario for an insurance company is to collect as many premiums as possible and pay out little.

As you undoubtedly know, insurance companies have several weapons in their arsenal to avoid payouts, including the fact that most state and federal laws allow insurers-not physicians or patients-to define payment terms. In one case, for example, a patient had to pick up the tab for an emergency department visit because her fractured hip was defined as "urgent" and the insurer would only pay for "emergent" ED care.

With these concepts in mind, let's examine a classic physician/insurance company confrontation. Your patient has been in the hospital for four days. She is recovering but, although you've been able to convert her medication from IV to oral, you don't want to send her home for another day or two. When you pick up her chart, however, you find a note from "utilization review" that indicates the insurance company will stop paying for the hospitalization at the end of the day because the patient isn't receiving an acute level of care, and asks you to "consider" discharging the patient.

Your obligation to your patient

What should you do? In making your decision, bear in mind that if you discharge the patient and something happens, you are responsible, not the insurance company. The company makes "coverage" decisions; only you can make medical decisions.

The answer to the question of when you are liable for an insurer's decision is clear-never. You're liable for your own decisions regarding patient care. If you feel a patient can be safely discharged, then by all means do so. But if you think your patient is at risk, act accordingly. If the patient insists on going home, have him sign a note stating that he understands that he's being discharged early and is willing to assume the risks-which you need to explain and document. Likewise, if you feel your patient needs a test or treatment that the insurance company denies, make sure you inform the company, in writing, why the procedure is necessary.

Finally, if you consider a treatment that an insurance company won't cover to be critical, refer your patient to a knowledgeable healthcare attorney.

The author is an internist and a health law attorney in Philadelphia. He can be reached by e-mail at eshore@KaneShore.com
. This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Woodcliff Lake, NJ 07677-7664. You may also fax your question to 201-690-5420, or e-mail it to memalp@advanstar.com
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