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.