Forensic Corner; Who is Responsible for the Outcome of Patient Care?

Lee H. Haller, M.D.

Managed care and insurance company reviewers will continue to make efforts to involve themselves in the financial aspects of patient care for the foreseeable future. This causes a necessary adjustment in some aspects of the doctor-patient relationship. First, the patient or guardian (if the patient is a minor) must authorize the physician to release information to the reviewer. The review agent then authorizes or denies payment for the proposed therapeutic treatment. When the reviewer denies authorization in part, or in full, problems may arise. Dr. Schetky discussed one such problem in the last issue: The "gag order."

This column deals with another problem that arises. The following case is illustrative. Lois Wickline suffered complications in her care subsequent to having a Teflon graft placed in her aorta. She had initially been granted ten days of hospitalization by Medi-Cal, the insurance reviewing agent. The treatment surgeon requested eight additional days from the company. However, the reviewer, a general surgeon, authorized only four more days without consulting a vascular surgeon. After these four days, the treating physician discharged the patient. Within a few days after discharge, Ms. Wickline developed complications in her leg which necessitated amputation when she was re-admitted to the hospital.

In the opinion of the treating surgeon, she would not have suffered the loss of her leg had she been granted the four extra hospital days. The doctor further opined that the Medi-Cal reviewer fell below the standard of care in several ways. Ms. Wickline sued Medi-Cal. The jury ruled in her favor. However, the California Appellate Court overturned the verdict, stating that Medi-Cal had no liability as a matter of law. The reasoning the court gave is that the treating surgeon was the one who had responsibility for deciding when the patient should be discharged. Since the surgeon failed to file an appeal or request an extension, Medi-Cal did not participate in the decision to discharge the patient on that particular day.

With this, the court sent a clear message. It is the treating physician's responsibility to determine what is in the patient's best interest. It is that physician who has responsibility for the outcome of the patient's care.

Even thought the decision came from a California court and therefore carries no legal weight in other jurisdictions, it is one of the few existing appellate level cases and has been cited in forensic texts. As such, judges in other jurisdictions, when faced with a similar fact pattern, may well look at this case for guidance. Hence, it behooves us all to examine this case and learn from it.

Whenever a physician agrees to treat a patient, that patient's care becomes the responsibility of that physician. The physician accepts responsibility for providing treatment to the patient that meets or exceeds a reasonable standard of care. The fact that an insurance company or a review agency denies payment of the physician's fee, stating the treatment is not medically necessary, does not relieve the physician of the responsibility for that patient's treatment. As the above case demonstrates, it is the treating physician's duty to do all that can be reasonably expected to see that all benefits which are due the patient from the insurer are provided. Should a reviewer deny care that the physician believes is necessary, it is the physician's duty to object to that reviewer's decision, to find out what the appeals process is and to make sure that the appeals process is followed.

It is essential that the physician not only take the steps to file the appeal, but then follow through by writing a note in the chart documenting the disagreement and the appeal. In the event that the request for appeal is denied, it is important for the physician to make a written note of this as well, including the name and title of the person who denied the appeal. The physician should continue to appeal until all levels have been exhausted. Also, the physician should make sure that the reviewer has all of the information that the physician has relied upon in making his own recommendation for treatment. To the extent that the reviewer does not have this information, clearly that person cannot be expected to reach the same conclusion as the physician.

This does not necessarily mean that the physician has to continue to treat the patient ad infinitum once benefits are no longer available. However, it does mean that the doctor cannot just discharge the patient once insurance is exhausted or denied. Instead, reasonable steps must be taken to ensure an orderly transfer of the patient into an alternative care setting, whether it be inpatient or outpatient. The physician must remain available to the patient to provide care in the event of an emergency until the change in therapy settings can be accomplished. In short, the physician has a responsibility not to abandon the patient, just as is true in any other setting wherein the doctor-patient relationship is being terminated.

In cases where the patient is hospitalized and insurance benefits are denied, there may be pressure from the hospital for the physician to discharge the patient or the hospital may want to take it upon itself to effect discharge. Again, it is incumbent upon the physician to oppose this action until such time as all the appeals have been exhausted and until such time as a reasonable alternative treatment plan can be put into place that is likely to assure the patient's safety.

Finally, it behooves all physicians and mental health providers to communicate with legislators about the necessity of having managed care and insurance companies carry liability for denial of benefits imposed over the recommendation of the treating physician. Heretofore, the entirety of the decision making process was between patient or guardian and physician. Therefore, it was appropriate for the physician to have liability should the treatment not be carried out appropriately. Now with the advent of the involvement of managed care in the treatment process, the outcome of treatment is no longer clearly in the physician's control. It is reasonable that the managed care companies carry liability for their decisions. This will not happen without public support, by both doctors and their patients.

Dr. Haller is in private practice of forensic psychiatry in Potomac, Maryland

AACAP News/May-June 1996