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The Standard of Care Is Not Established by Health Plans or Insurers By Daniel J. Schulte, JD, MSMS Legal Counsel
Q:
The recent legislative hearings on bills to regulate prior authorization have me wondering whether health plans and insurers are changing the standard of practice. When a health plan or insurer requires/denies prior authorization for
a prescription or other treatment are they establishing the standard of practice (i.e. that the recommended prescription or other treatment is not necessary to comply with the standard of care)? Will the fact that prior authorization was required and denied be a defense in a malpractice case or licensing action alleging that I failed to act within the standard of care?
No. The standard of practice that must be met in all cases is established by physicians not health plans, insurers or anyone else.
I
n every patient encounter you will be held to the standard of what a physician of ordinary learning, judgment or skill would do or would not do under the circumstances. The standard of practice does not take into account or change based on the requirements and judgments of the patient’s health plan or insurer. It is based solely on the relationship between the physician and the patient and is focused exclusively on what the physician should or should not have done. In a malpractice case, whether the standard of practice was met would be decided by a judge/jury after being supported/opposed by expert witnesses for the plaintiff and the defendant (who must be physicians). In licensing actions where the State of Michigan is
6 michigan MEDICINEÂŽ
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alleging negligence, expert witnesses are not legally required but most often are retained for their opinions as to whether this same standard of practice has been met. It will not be a defense in either case that the treatment you failed to recommend was not (or was no longer) covered by the patient’s health plan or insurance or that prior authorization was required and denied. Instead, a prior authorization requirement and denial will be disregarded and you will be judged solely based on whether a physician of ordinary learning, judgment and skill under the circumstances would have ordered the prescription or other treatment. It is critical that you carefully document in the medical record that all recommendations for necessary prescriptions
