Wielding the Wand without Facing the Music: Allowing Utilization Review Physicians to Trump Doctors' Orders, but Protecting them from the Legal Risk Ordinarily Attached to the Medical Degree
Abstract
This Note identifies a discrepancy in the law governing the decisionmaking that directs
patient care. Seeking treatment that a third party will pay for, a patient needs not
only a physician-prescribed course of treatment but also an insurer's verification
that the cost is medically necessary or otherwise covered by the patient's plan. Both
of these decisions directly impact the ultimate care delivered to the patient, but
are governed by two very different liability regimes. A patient who suffers an adverse
outcome may sue his physician in tort, while a patient who suffers from a lack of
coverage may generally sue his insurer only under contract. In other words, when a
patient suffers from inadequate care, his potential remedies vary considerably depending
on whether the physician or the insurer is the defendant. This discrepancy in liability
is the consequence of the federal law governing the administration of employer-sponsored
health plans, and its extensive preemption of related state law. Many commentators
have called for legal reform to address the distortion of managed care liability that
results, arguing that managed care liability must be consistent or that wronged beneficiaries
must have access to meaningful remedies. This Note argues that the federal law governing
managed care organizations is problematic for a different reason and that the first
step toward reform may be more elementary than previously suggested. Specifically,
it suggests that the law governing insurers' coverage decisions is inconsistent with
the law governing treatment recommendations. Patients suffer the same harm from error
in both contexts-but because they can recover substantially more from treating physicians,
doctors are named as defendants even when the insurers make errors. Further, this
Note argues that simply aligning these two standards might offer a gateway to reform.
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https://hdl.handle.net/10161/4213Citation
Record,Katherine L.. 2010. Wielding the Wand without Facing the Music: Allowing Utilization
Review Physicians to Trump Doctors' Orders, but Protecting them from the Legal Risk
Ordinarily Attached to the Medical Degree. Duke law journal 59(5): 955-1000.
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