Let us expand our purview to all medical care, then come back to Epilepsy.
Since there are no "consequences" to standard care,
it would be best to first define U.S. community standard care.
Then see if anything is left.
Community Standard Care is so prevalent and ingrained
that Physicians can not tell the difference between
malpractice and expert care, whereas patients can.
Let us expand our purview to all medical care, then come back to Epilepsy.
Quality of Care is ultimately equated with the trends in medical liability lawsuits.
Originally
Traditionally, states are responsible for regulating health care and litigation. ERISA preempts state law. Courts have used this to prevent enforcement protecting the patient-physician relationship.
Under ERISA, lawsuits against MCOs must be heard in Federal court, and can only recover the cost of benefits denied, not the more lucrative damages for economic loss, pain & suffering, etc This insulates MCOs from exposure to monetary damages.
Courts have rarely decided against a MCOs denial of physician-prescribed benefits. This is because MCOs and employees are not considered fiduciaries for establishing or changing the terms of a health plan.
MCOs rely on utilization management techniques, such as pre-authorization of services, to reduce costs. The courts continue to uphold these practices, which reduce physician autonomy.
Example: A suit was filed in state court against a MCO for death of a foetus because of denial of care. The court ruled that the medical decision was made within the context of determining benefits, and preempted the lawsuit under ERISA. The court allowed the administrative aspects (quantity issues) of the utilization process to supercede the medical aspects (quality).
As part of a backlash against MCOs, many state legislatures have passed laws to safeguard physician autonomy. Texas has the most far reaching statute requiring external appeals for denial of care and allowing MCOs to be sued for poor quality of care. Nevertheless, the courts have overruled in favor of ERISA.
MCOs withhold salary to physicians who make referrals to specialist, and give bonuses to physicians who do not refer and restrict high-cost procedures. These practices have been upheld in court. Further ERISA preemption may prevent states from passing laws to change this.
Example: A patient claimed that the MCO policy to keep her doctor from ordering tests and making referrals lead to failure to diagnose a brain tumor for 5 years until it invaded 40% of her brain. The court ruled the state law on negligence was preempted by ERISA.
Courts are no longer championing physician autonomy or the patient-physician relationship. Judges suggest complaints be taken to the state legislature. But state laws are preempted by ERISA. Only the U.S. Congress can amend the preemption provision or create new regulations. Attempts to do so have met in failure. Physicians are left in the untenable position of being entirely responsible for cost containment policies over which they have no control. Physicians but not MCOs are being sued.
Returning physician autonomy may seem bad as this originally lead to uncontrolled costs with the fee-for-service system. Cost containment is needed. ERISA has simply gone too far in removing the liability threat for improper treatment. More accountability of the MCOs is needed.
Pegram vs. Herdrich, 98-1949.
Decision expected July, 2000.
WASHINGTON, Feb. 23, 2000
The U.S. Supreme Court appeared unlikely to let people sue their health maintenance organizations for offering doctors financial bonuses to keep costs down.
A lower court allowed Herdrich to sue the Carle Clinic Association for delaying diagnostic tests. She had present with incapacitating abdominal pain, but rather than getting an ultrasound immediately, her HMO doctor request she wait a week and get it at the HMO's contracted facility 50 miles away. During that wait her appendix burst.
She decided to sue the HMO, too, after discovering that it paid its doctors a bonus for holding down costs. Her lawyer told the Supreme Court that when HMOs provide a financial incentive, they actually encourage doctors to withhold treatment. To the extent that money is not spent on those services, it's available for bonuses for the doctors at the end of the year. So they're essentially getting paid to look the other way with respect to your health care, said her attorney James Ginzkey.
Almost eight out of 10 or nearly 160 million Americans get their health care from an HMO. Most states ban lawsuits against HMOs but attorney Ginzkey said patients should be able to sue when HMOs give their doctors incentive bonuses. But the Supreme Court seemed to believe that financial incentives provide no basis for suing. Justice Stephen G. Breyer said he found it hard to believe that when Congress passed a 1974 law governing employee benefits, it wanted to gut its own HMO legislation, passed a year earlier, by allowing lawsuits over financial incentives used by HMOs.
Justice Breyer asked attorney Ginzkey how courts should decide which financial incentives would be allowed and which would not. Ginzkey said it may have to be decided on a case-by-case basis. Lawyers for HMOs insist that no doctor is going to withhold needed care and risk a lawsuit just to get a bonus: You can just look at the numbers and say, "Oh, Gee. It seems like there's going to be a conflict there." The truth is, if you step back, it is an irrational judgment to think that physicians are going to risk malpractice on that basis, said Carter Phillips, the lawyer for the organization sued by Ginzkey's client.
The case stakes out one of many fronts in the war over managed care.
Other lawsuits against HMOs accuse them of violating a racketeering law by
concealing financial incentives provided to doctors to hold down treatment
costs. Some states have decided to let patients sue HMOs, and Congress is
considering patients' rights legislation that could set new standards for
managed care and might allow patients to sue their HMOs.
Back to Epilepsy Care
It would seem like nothing is left.
There is no bad care by present legal definition.
Caveat emptor.
Return to COPE