headerimg




Tuesday, September 18, 2018

Prior Authorizations: Who is Responsible for the Death of a Patient when Insurers Practice Medicine?



In July, 2009, the family of Massachusetts teenager Yarushka Rivera went to their local Walgreens to pick up Topomax, an anti-seizure drug that had been keeping her epilepsy in check for years. Rivera had insurance coverage through MassHealth, the state’s Medicaid insurance program for low-income children, and never ran into obstacles obtaining this life-saving medication.
But in July of 2009, she turned 19, and when, shortly after her birthday, her family went to pick up the medicine the pharmacist told them they’d either have to shell out $399.99 to purchase Topomax out-of-pocket or obtain a so-called “prior authorization” in order to have the prescription filled.
Prior authorizations, or PAs as they are often referred to, are bureaucratic hoops that insurance companies require doctors to jump through before pharmacists can fulfill prescriptions for certain drugs. Basically, they boil down to yet another risky cost-cutting measure created by insurance companies, in keeping with their tried-and-true penny-pinching logic: The more hurdles the insurance companies places between patients and their care, the more people who will give up along the way, and the better the insurers’ bottom line.
PAs have been a fixture of our health care system for a while, but the number of drugs that require one seems to be escalating exponentially. Insurance companies claim that PAs are fast and easy. They say pharmacists can electronically forward physicians the necessary paperwork with the click of a mouse, and that doctors shouldn’t need more than 10 minutes to complete the approval process.
But in my experience, that’s rarely the case. In order to get my patients the drugs they need, I regularly spend more than half an hour on the phone with ill-trained customer service reps who don’t know the first thing about pharmaceuticals and whose job description consists of being as obstructionist as possible.
And I’m not alone. A video by an independent physician with a sense of humor documented his Kafka-esque bid to obtain a PA for a patient. The video lasts 21 agonizing minutes. And studies have shown that PAs gobble up at least 20 hours per week in the average physician’s office. Even in an age when many aspects of practicing medicine in the United State have become nightmarish, PAs hold a place of particular sinister distinction.
Now, back to the Rivera case in Massachusetts. After Walgreens declined to fill Yarushka’s Topomax prescription, her family returned to the pharmacy four more times –each time without success. (It’s unclear whether or not Walgreens ever actually sent an authorization request to the physician’s office.)
Without the drug she’d relied on for years, Yarushka had three seizures. The last one proved fatal.
Her grief-stricken family subsequently filed a wrongful death suit – not, as might be expected, against the insurance company that required the PA in the first place, but rather against Walgreens, Yarushka’s physician and his practice.
To my mind, this case gets it all wrong, and in so doing, potentially dangles Damocles’ sword over the heads of each and every physician and pharmacist practicing in the United States today. The fact is that both Yarushka’s doctor and the Walgreens pharmacist did their jobs: Her physician issued a prescription for the life-saving anti-seizure drug, and the pharmacist tried to dispense the medication. It was Yarushka’s insurance company — not the physician or the pharmacist — that was the monkey wrench, arbitrarily denying coverage for her medication without any reasonable justification. 
Medical malpractice is defined as negligence by act or omission in cases where the prescribed treatment fell below the accepted standard of practice and caused injury or death. In the Rivera case, MassHealth alone created the barrier between Ms. Yarushka and her life-sustaining medication.  The insurance company was, effectively, practicing medicine without a license. And it alone should be held accountable for the tragically predictable outcome after overriding the sound judgement of her physician and pharmacist. 
But because of a legal doctrine called sovereign immunity, which shields states from civil or criminal prosecution, it’s highly unlikely that MassHealth, a state-run insurer, will ever face legal consequences from the Yarushkas — or any other, for that matter. How many more patients have to die before we force insurers to prioritize patients over profit?
The Rivera case is still winding its way through the court system in Massachusetts, but a verdict against Walgreens will open a Pandora’s box for medical professionals across the country, effectively holding them legally liable for the decisions and practices of an all-powerful third party that’s under no obligation to follow their medical recommendations. If MassHealth is not held accountable for causing the wrongful death of Yarushka Rivera, then more insurers will be emboldened to practice medicine without a license, which will surely lead to the deaths of countless other patients nationwide.



14 comments:

  1. This comment has been removed by a blog administrator.

    ReplyDelete
  2. The insurance company was, effectively, practicing medicine without a license. Therein lies the key because this is exactly what insurance companies are doing the minute they insert themselves into the treatment process and interfere with the doctor-patient relationship as well as the patient's care. While I don't begrudge any private business earning as much money as possible, we have insurance company CEO's routinely earning $15-20 million a year while presiding over decisions that render the delivery of care much more difficult. The end result is a restriction of access to care for patients while preserving the corporate bottom line. Others may be quick to argue that there are many people receiving bloated salaries, but does an athlete's high salary directly translate into somebody else's suffering? If we don't like that we can simply stop going to sports games or supporting teams by purchasing merchandise or watching games. We cannot do the same with health care coverage and since nobody is regulating insurance companies, which have found all sorts of loopholes (ie. ERISA) to avoid liability, they can continue to get away with stripping away from increasing amounts of each health care dollar spent to fund bureaucracy and administrative salaries while denying care. It has been argued elsewhere that prior authorizations should be the purview of pharmacies to ease the burden doctors face, but that misses the point. Pharmacies would need access to medical records, which opens up other issues. The main issue though needs to be focused on finding continuing ways to hold insurance companies accountable in the court of law. Doctors are subject to "managed care" as well as a wide array of other impediments to practice, but who is "managing" insurance companies?

    Hopefully the tide may be starting to change. Note this from 2015: https://caselaw.findlaw.com/us-2nd-circuit/1711078.html
    http://www.nyspsych.org/index.php?option=com_content&view=article&id=304%3Aunited-healthcare-decision-8-20-15a&catid=20%3Asite-content

    We as physicians need to continue to meet our ethical and moral obligation to patients no matter how distasteful the process of prior authorization is. However, we also need to find more ways to fight back. Starting class action suits against insurers, encouraging patients to flood insurance commissioner offices in their states with complaints EVERY TIME a medication or other treatment is denied, and refusing to back down or have decisions about patient care dictated to us are just some of the things that need to happen if there is ever going to be change.

    ReplyDelete
  3. I'm no fan of PA, having recently fought for 9 months to get a patient her meds. However, I'm going to play Devil's Advocate here.

    It says she was in a program for low income children and that the patient had just turned 19. Could age have been a factor? Is the program only for 18 and under?

    Secondly, the insurer did not practice medicine. They didn't say she couldn't have the medication. They only said they wouldn't pay for it. Obviously denying the money had the same effect as denying the medication but legally there's a huge difference.

    Unless there was a contractual obligation and the PA policy was clearly spelled out and violated I don't think they have a case against the insurer.


    ReplyDelete
    Replies
    1. I get what you are saying, but I really don't think it would take a very sharp lawyer to convince a Jury that the insurance company should have known that a person on medicaid would be unable to pay for that medication and that the medication in question, if stopped, could cause death. Ignorance is not bliss.

      Delete
    2. I do a lot of medicolegal work and I think it would be very hard to argue that the insurance company "should" have been able to predict the future. "Should" merely restates an opinion as a fact. Where is the factual evidence that they knew or should have known what would happen?

      The insurer would probably appeal an adverse ruling and prevail unless they screwed up their own process. That means they violated their contractual obligations and/or internal policies.

      One of the nastier tactics is to send out notices of changes in coverage - something they all can and do whether you like it or not. They can change coverage on a drug on a whim and you're stuck with it until open enrollment once a year.

      One possibility is that they changed the PA tier for Topamax from no PA necessary to PA required. They send out notices of these changes but nobody reads them. If they can produce that they have covered their asses. The patient or family was notified and didn't plan accordingly. I suppose the family could argue they never received the notice. Then you have a he said/she said.

      Delete
    3. If you shout FIRE! in a crowded place where there is no fire. You could assume everyone leaves, no on get hurt. But this time, everyone ran fast, 1 person got trampled. You had no idea that one of the people weighed 600 lbs, but you are still guilty of manslaughter (I think is the correct term). You should have reasonable known that someone could get hurt. As an insurance company they balance risk financially. An average lawyer should be able to convince a jury that the insurance company not only understands the risk of their decision, but also has a legal and ethical responsibility to do so. Again, Ignorance is not a defense.

      Delete
  4. We deal with this everyday. From medication to testing. We spend a crazy amount of time documenting the need for the treatment or test only to have a nurse with such poor interpersonal skills she couldn't get a real nursing job say that the insurance company won't pay for it. I have my nurses document in the chart the name of the person that denied the test. I know my documentation is enough to convince a jury that the patient needed the test. If denied by the Dr I talk to I include his name as well and I make sure they know i am doing so. This has helped to get things approved and I feel it gives me some form of protection. At the end of the day though, it is the patient that suffers in delayed treatment or testing. With lawyers looking to include more entities (the Dr, the Dr Company, The hospital, The credentials organization, pharmacies) I can't believe that insurance companies have not been included. $13 Billion dollars in profits and I have to spend 30 minutes on the phone to get a cardiolyte stress test approved. We don't have a healthcare problem, we have an insurance company crisis.

    ReplyDelete
    Replies
    1. Absolutely! The vast majority of obstructions in our system usually trace back to a third party payer and/or the rules and regs governing them.

      Delete
  5. Insurance companies have absolute immunity in ERISA, from 1974.

    The Supreme Court then pre-empted state regulations of health insurance.


    Try reversing federal pre-emption.


    ReplyDelete
  6. It's good to be the insurance company. Maybe our best and brightest should go into that field instead of medicine?

    ReplyDelete
  7. As a lifetime pharmacy tech that has worked in all fields-retail, hospital, and physician dispensary- I know that this had to be the all to inevitable but appalling outcome of these PA requests. Every entity, be it the physician's office, the pharmacy, or the insurance company representative, has their own story to tell about how long this should take and what should be done and who is at fault. But the patient is the one who ultimately suffers, and they do not often understand the so-called inconvenience. But a fatality?! I pray to God some changes come out of this.

    ReplyDelete
  8. prior authorization is done for the permission of the cute offers. It has been ensured for the movement of the trial and try this one in the sight of the elements. It has even ensured for the authority of the normal means for the society.

    ReplyDelete
  9. the prior items and theme have been highlighted for the approval of the fixed items for the humans. The chance of the project and http://www.radiologyfellowship.net/how-we-create-radiography-personal-statement/ is done for the humans. It has been accused for the use of the good and vital parts for the people.

    ReplyDelete
  10. prior authorization is done for the good and all depicted items for the humans. The change of the club and visits of the http://www.residencyprograms.biz/top-residency-programs/neurology-residency-programs/ are marked for the humans. The essence is done for the flow of the offers for the humans in the mid of the facilities.

    ReplyDelete