Half of my family and many of my friends are doctors. I admire them enormously: they are smarter, work harder, and are more compassionate than any group I know. Yet sadly, they are all wimps. Despite non-stop carping about the dangers and cost of health insurers’ prior authorization machinations, not a single one is willing to step up and take on an insurance company.
Of course, I understand why: doctors’ incomes are largely dependent on insurance companies paying them. And no sane businessperson wants to take on an 800-pound gorilla known for being vindictive. The stories about insurance companies withholding payments, auditing uppity doctors, or expelling them from in-network panels aren’t just stories: they are real and recurring nightmares.
That insurance company utilization review “protocols” put patients at risk is well known. The American Medical Association has been surveying doctors for years about the impact of prior authorization (“PA”) on patients, and the results are uniformly disturbing: the AMA found that more than 90 percent of doctors say PA causes delays in treatment; a third of physicians report that PA delays have resulted in a serious adverse event for a patient in their care; 24 percent report that PA delays have resulted in a patient’s hospitalization; and 18 percent say PA has led to a life-threatening event or one that required intervention to prevent permanent impairment or damage. Moreover, nearly one out of ten doctors report that prior authorization “reviews” have led to a patient’s permanent bodily damage, disability, or death.
The AMA also notes that 84 percent of physicians report that the number of PAs required for prescriptions and medical services has increased in the past five years. Disturbingly, a study by the Inspector General of the U.S. Department of Health and Human Services found that 73 percent of such denials for medications were approved on appeal.
I learned about the dangers of prior authorization when I represented the Valentini family. Kathleen Valentini, then 47, went to her doctor complaining of pain in her leg. He examined her, took an X-ray, and told her he didn’t see anything wrong. The standard treatment was an over-the-counter painkiller and six weeks of physical therapy. Kathleen did the PT religiously but reported the pain was even worse. Her PCP referred her to an orthopedist who took a second X-ray and wanted an MRI. But the insurance company said it “wasn’t medically necessary” until she had completed six weeks of PT. The orthopedist pointed out that not only had Kathleen completed the prescribed course of PT, but that the insurance company itself had paid for it. Nevertheless, the insurance company stood by the denial, and the orthopedist appealed.
The appeal took five weeks, and the insurance company reversed its denial. Kathleen then got the MRI, which showed a sarcoma on her hip. When she presented at Memorial Sloan Kettering, the doctors there told her that had she come a month sooner, they would have treated her just with chemo. Now, they explained, they’d still use chemo, but first, they had to amputate her leg, hip, and pelvis.
We sued the insurance company and its utilization review subcontractor for malpractice. We argued that they had effectively chosen to practice medicine—by getting between Kathleen and her doctor—and did so negligently. We lost. The courts said that while the story was tragic, there was no statute—and little case law—that said an insurance company had a duty of care to a patient. Doctors, nurses, podiatrists, dentists, hospitals, and medical practices all had a duty of care—but not insurance companies.
I believe insurance companies should be held accountable when they decide to practice medicine. But getting before state courts is difficult. Most insurance plans fall under ERISA, the federal law that both preempts state laws and has a much tougher—and more company-friendly—legal threshold that has to be satisfied. That is a big reason why there is so little relevant case law.
I have developed a legal strategy that I think can give patients who have been harmed by insurance company prior authorization schemes a reasonable shot at justice. But it requires a doctor to be a co-plaintiff. And while I can’t blame my physician friends and relatives for their reluctance in stepping forward, I do have a recurring dream: that a soon-to-be-retired doctor will step forward.
Doctors who are at the sunset of their careers know all too well that prior authorization endangers patients and costs medical practices tens of thousands of dollars annually in bureaucratic hurdle-jumping. My hope is that a few of them will say that taking on an insurance company is a worthwhile coda to a worthy career.
Steve Cohen is an attorney and can be reached on LinkedIn. Steve’s practice epitomizes the intersection of law, policy, and journalism—with the realities of politics thrown in for good measure. For 35 years before going to law school, Steve was a successful publishing executive—including at Time and Scholastic—best-selling author and CEO of three internet start-ups. Since teaming up with Adam Pollock in 2018, he has learned to bring that unusual background, diversity of experience, and skills to the law.
