Managed Care 101 in 2010 (Part X): Managed Care Reviews the Care; Then What?

Boston.com published "A handshake that made healthcare history" on December 28, 2008. It described the 'business of medicine,' which I must contrast with 'medical business' as it is the sticky point in this series. It was a dirty deal—an anticompetitive, "gentleman's agreement that accelerated a health cost crisis." Partners HealthCare, Massachusetts' biggest hospital company, arranged it so that no other insurer would pay less than Blue Cross Blue Shield of Massachusetts; that, it turned out, "would give Partners doctors and hospitals the biggest insurance payment increase since Massachusetts General and Brigham and Women's hospitals agreed to join forces in 1993." In an era of wanton deregulation and greed, this " deal, never before made public, marked the beginning of a period of rapid escalation in Massachusetts insurance prices."

Along a similar vein, CIGNA posted its third-quarter performance figures for 2008—Profits are up 22%. Next year they expect to earn an income of up to $1.2 billion.

Here's the difference between "medical business' and the business of medicine"—In “Too Little, Too Late” posted in the May 19, 2008 inaugural issue of this column, we discussed an example of “mangled care”—wherein “CIGNA refused to pay for a liver transplant*, twice, and then only reversed when it was too late; that is, that denial was the proximate cause for the 17-year-old leukemia patient’s demise. The insurer deemed the transplant would have been ‘experimental,’ a contract exclusion, its experts already having determined it would not have been ‘effective or appropriate.’”

Now, a suit is filed December the 19th, 2008 that is challenging two California physicians who were working for CIGNA doing their utilization review and case management.

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Why do lawyers always seem to wait till the last possible day before the statute of limitations runs out? Anyway, it'll be years before we know how it turns out. It’s also interesting that CIGNA was not actually at risk; it was acting as administrator for an ERISA plan. Nevertheless, in “Insurer's U-turn too late to save life of transplant teenager,” the byline reads: “Lawyer wants Company to be charged with murder; Death inflames debate over US healthcare system.”

*The 17-year-old from Glendale, California, had been in a coma for weeks after complications [Editorial Comment: that included liver failure] following a bone marrow transplant to counter leukemia.”

[Source: Ed Pilkington / Guardian December 21st, 2007]

I wonder what were the qualifications of that reviewer as compared to those of the doctors who recommended the treatment in the first place? I'll bet he was far less qualified, but had the job because he gave HMOs the answers they wanted to hear. I also wonder, if the liver failure was a side effect of UCLA's prior treatment, and whether UCLA didn't have a responsibility to do the procedure without waiting for payment.

-Fredrick H., MD, PhD, Esq

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HMOs create transplant UR screening with docs at the top. The question is how do such docs get to the top of the HMO pyramid? It is not from being great in their field. It is all about the business ethic vs. the Hippocratic Oath, the pinnacle of humanism where even the Greek slave is ethically treated. All the MD at the top has to say is ‘experimental’ and the treatment is not funded. My hero is Linda Peeno,MD, who figured this all out when she was a Medical Director for Humana. She quit and explained it all to Congress. When I am asked how to redirect the Nobel Prize committee to a new direction, it will be to honor ‘whistle blowers’ like her.

-Philip C, MD

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You're not going to like this, but as I recall, UCLA dropped the ball, but I agree with the intimation that UCLA should have done the procedure. Dr. Jeffrey Kang of CIGNA said: "Two, independent experts in the field agreed that the procedure in question, given the patient's particular circumstances, would not have been an effective or appropriate treatment [but] CIGNA went above and beyond the plan and offered to provide payment in the event the procedure should be completed.”

-JGK

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Regarding CIGNA, Yes, calling this “experimental,” exempting it from coverage is bad; Yes, it can be argued that insurers take too much money out of the system, but does that justify the action of UCLA in these circumstances? The bad deeds of insurance companies do not justify bad deeds by health care professionals.

While it may not be UCLA's job to be the hero for a CIGNA card holder, it is their job to be a hero for a human being - one that they, for economic reason, decided to withhold care from, care that they could have provided. Why did they allow this human being to die? It is simply because they did not want the bad outcome on their books, and they did not want to bear the costs of the care that had been recommended.

In other words, the providers have not stood tall in competing, based on value (quality & cost) leaving it to everyone else to become involved, then trying to define it, regulate it, and control it. Without competition based on value we are left with a money chase by all players.

Should money ever have been the issue here? I don't know if they would have qualified for Medicaid, but resources in New York State can be applied on an emergency basis and there's usually other funding that can be found. Imagine the heros that this hospital and its physicians would have been if they did the transplant, the patient lived, and then they went to the public for economic support. They would have had the best of all worlds—a live poster child for fund raising and hero physicians and hospital that put money aside to save a life. A good Christmas time story, perhaps, and I'll bet they could have raised [sic.] more than the cost of the transplant. However, they had another agenda.

-Gilbert R.,Executive Director of a large, academic-based PPO

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UCLA is not about to attack the right of HMOs to deny payment, because, as a UCLA dean told me, "We ARE an HMO!"

True, it would have been nice if UCLA voluntarily took the $500,000 hit, but it had no legal obligation to do so, while the HMO did have the legal obligation. Can we expect the provision of free care by providers whenever an HMO denies payment? Consider how the combination of EMTALA that requires ERs to provide emergency care regardless of ability to pay, and the ease with which HMOs can deny payment combine to force the closing of ERs. And, how many liver transplants would UCLA have to do for free before they would have to stop providing that service? Etc., etc., etc.

We need a SYSTEM for handling problems such as these.

Medical care is basically a Contract, and the patient's notice of refusal to pay could be a presumptive breach of contract, relieving the provider of Its contractual responsibilities. If that's the case, they'd still have to provide emergency care, but could then tell the patient to get care elsewhere.

I would guess that the success of a claim like that would depend on how likely the side effect was, and what might have been done to make it less likely, and whether the original treatment had to be done anyway because there was no alternative.

For instance, I practiced radiation oncology. We knew that there was a trade off between cure of cancer and damage to normal tissue. At a level of no normal tissue damage, a lot of cancers would recur. At a level that would assure no recurrence, there would surely be a lot of normal tissue damage. So, should we have been sued for normal tissue damage?

Indeed, I knew a doctor who routinely gave too low a dose. The referring doctors loved him because "He doesn't burn my patients", and when the patients died of their cancer, no one blamed him, because they expected cancer patients to die anyway!

Much depends on the truly informed consent. If patients know the true risks, and accept them, they're not in a position to sue.

-Fredrick H., MD, PhD, Esq

To my readers:

Would you say that a hospitalized patient, by virtue of the hospital and the physician accepting the patient, has an a priori, contractual relationship with those providers for medically necessary and appropriate care?

What is the obligation when the care that they were provided had the unintended consequence of the liver failure, especially if it was a known side effect of the anti-rejection drugs?

The obverse: where’s the accountability when a doctor clearly under treats?