The Ugly Connection Between Medical Negligence and Insurance
The title of this article captures a maddening truth: “Doctors with Histories of Malpractice Settlements Work for Insurers, Deciding If They’ll Pay for Care.” Physicians who have demonstrated gross incompetence can end up in jobs that wield significant power over the lives of patients. While they may not lay their hands on a patient, they have the authority to approve or deny medications and procedures that are submitted to insurance companies in their roles as insurance company employees or medical directors.
Doctors employed by insurance companies typically are responsible for approving or denying insurance coverage for medical procedures. Patients have procedures to improve their health suggested to them by their doctor. They then must submit for approval of this procedure to their insurance company. Their insurance company then either approves or denies the suggested procedure. The person responsible for approving or denying the procedure often has the title “Medical Director.” But who exactly fills the role of Medical Director?
How and why have negligent doctors become such “pivotal gatekeepers,” impacting the lives of thousands of patients and their families?
When looking for a doctor, a family can investigate a potential physician’s education, training, and professional history. Many states also make performance reviews, including possible sanctions by the medical board, and information about malpractice available - if you know where to look. A patient can use this information to decide whether to seek care from a particular physician.
However, the same due diligence is not possible with medical directors. Rarely do patients or attending physicians even know the name of the medical director when they submit a request. “Their identities and backgrounds, and their qualifications for making such life-altering assessments, remain largely hidden.”
As ProPublica and The Capitol Forum investigated health plans and their refusal to pay for care, they discovered that insurers often hired for these roles doctors whose notoriety preceded them. These doctors had “a history of multiple malpractice payments, a single payment in excess of $1 million or a disciplinary action by a state medical board.” Apparently, all that is required for a doctor to become a medical director is a medical license.
Consider, for example, Dr. Pachavit Kasemap, featured in a newspaper article titled “Dangerous Doctors.” After settling five malpractice cases for $3 million, including one case where the doctor “stapled and stitched [a patient’s] rectum to her vagina,” Dr. Kasemap took a job as a medical director.
In this role, Dr. Kasemap reviews claims and requests to cover treatment and uses his “expertise” to determine if proposed procedures and treatments are necessary or if a less costly alternative is available. In fact, he currently manages other physicians and is part of the Physician Leadership Development Program at the company where he works. How someone so notorious has continued to have such a big impact on patient care is perplexing, to say the least.
Similarly, The Eisen Law Firm twice sued the same neurosurgeon for negligence. In each case, The Eisen Law Firm proved this doctor was negligent and caused significant, permanent patient harm. The care was so bad that this doctor was forced to leave his practice group. Where did he go? You guessed it, to an insurance company, where he now decides what treatments patients should or should not receive.
Incompetent gatekeepers cannot be trusted to make the right decisions. Terrold Dance, who injured his shoulder on the job, had to contend with this problem. After an MRI confirmed that he had torn his rotator cuff, he started physical therapy that was approved by his insurance. However, a year later, Dance’s shoulder still had not healed. After another examination, Dr. Braden Jones determined that Dance needed surgery.
Enter Dr. Jon Erickson, the medical reviewer who evaluated and denied the request for surgery. Erickson had committed so many shoddy hip replacements, including once when he put in the hip backwards, that the state medical board made a deal with him: he could keep his medical license, but he was not allowed to operate. Ironically, Erickson “has the power to decide that orthopedic operations are not medically necessary, when he himself is not allowed to perform them.”
Ultimately, Dr. Jones complained to the insurer, citing Erickson’s past, and the insurer reversed the decision, paving the way for Dance to have the surgery he needed. He has since made a full recovery.
The problem extends beyond incompetence. Sometimes it’s a matter of expertise and knowledge. A medical director with a background in orthopedics, for instance, may not be up to date on the best treatment for a patient with cancer. Yet, in the role of medical director, doctors have the authority to override requests made by specialists in the field who have years of specific education, training, and experience.
Such was the case when Orrana Cunningham’s request for proton beam therapy for a patient’s stage IV cancer was denied. At this point, the radiation oncologist at the MD Anderson Cancer Center, Dr. Clifton Fuller, requested a peer review. The insurance company paired Fuller with Dr. David Massman, a former family medicine doctor who had not practiced in over 20 years. For four of those years, his license was on probation, which ironically may not be the biggest problem in this dispute. Massman had no experience with radiation oncology or proton therapy, leading the family’s lawyer to proclaim about the insurance company’s doctors who were part of the decision-making body, “These doctors were not properly qualified to know the first thing about the medical issues involved here.” It’s like asking a plumber to rewire the house. Expertise matters.
Patient frustrations aside, perhaps the most telling data comes from doctors themselves. An American Medical Association survey found that when asked if health insurance medical directors were qualified to evaluate the requested treatment, more than a third claimed that doctors working for insurance companies were “rarely” or “never” qualified to do so.
How do the insurance companies defend themselves?
Insurance companies deny that their hiring of medical directors who have so clearly demonstrated incompetence are deciding medical questions. They emphasize that their medical directors need to have licenses to practice. While they could give no specific information, they also asserted that they do have an assessment process for medical directors. Their final defense is that a malpractice claim does not necessarily mean that malpractice occurred.
These are not very satisfying answers considering what’s at stake: the health and wellbeing of patients who don’t always have the time or resources to appeal a denial of care. Nor should the burden fall on them or their doctors, who should be using their time to treat patients according to their expertise.
It’s hard to trust the process
This information about medical directors calls into question the motives of insurance providers. Can we assume good intentions, when they have put negligent and unqualified physicians in the role of medical director? Do they really have the best interests of patients and their families at heart or are they simply trying to cut costs and save money. (Hint: if it’s an insurance company, they are probably trying to save money.) How do we balance treatment options with cost?
Sadly, there are more questions than answers here, especially since there is such a lack of transparency about the process by which medical directors are hired, trained, and evaluated.
One thing, however, is certain. Insurance companies should be advocates for patient care, not adversaries. If you or a loved one feels that an opportunity was missed for you to receive the care you deserved, contact our experienced Cleveland medical malpractice lawyers to discuss your options for legal recourse and for obtaining the compensation you deserve. To schedule your free consultation, call 216-687-0900 or contact us online today.