Health Insurer Sued for Medical Malpractice Over Prior Authorization

The estate of Kathleen Valentini blames her health insurance company Group Health Inc. (GHI) and its utilization review process for her 2020 death from cancer. Attorneys for her estate argued that the insurer’s denial of prior authorization for an MRI constituted medical malpractice, a delay in diagnosis that led to the amputation of her hip, pelvis and leg and ultimately caused her death.

When Valentini’s hip began to hurt in 2018, her primary care physician referred her to physical therapy and offered pain medication. GHI paid for this treatment. After six weeks of therapy, and still experiencing hip pain, she was referred to an orthopedic surgeon, who asked GHI to authorize an MRI.

EviCore, the company GHI employs to conduct medical utilization reviews, determined the MRI was not medically necessary unless Valentini first completed six weeks of physical therapy. It is not clear why EviCore did not know she had already completed the physical therapy. When Valentini’s orthopedic surgeon appealed the denial, GHI did not reverse its decision for 40 days. When a sarcoma was discovered on the MRI, doctors needed to amputate her hip, pelvis and leg. The cancer had also spread to her lungs.

Upon hospital admission, Valentini’s treating physician told her, in substance, “had you come to us a month sooner, we could have used [just] chemotherapy. Now we can’t; we have to amputate before we treat with chemo.”

Valentini underwent the amputations and chemotherapy but ultimately succumbed to the cancer in 2020. Her estate sued GHI for negligence, medical malpractice, prima facie tort, breach of contract, fraud and conspiracy, alleging the health insurer owed her “a duty to act reasonably and use due care with respect to her medical care and treatment” and that it breached that duty by overruling the judgment of Valentini’s treating physicians and “wrongfully advising that an MRI was not medically necessary.”

The district court judge overseeing the case dismissed the claims against GHI because he determined no definable physician-patient relationship existed between Valentini and the health insurer, a requirement for medical liability actions in New York.

“Defendants did not examine [Valentini] directly and there are no non-conclusory factual allegations showing they affirmatively provided medical advice,” wrote Judge John Cronan in his ruling. “Any reliance that [Valentini] had on eviCore’s determination was based on her willingness and ability to pay for treatment. This does not give rise to a duty under New York law.”

Valentini’s estate appealed to the U.S. Appeals Court for the Second Circuit, and oral arguments are expected to commence before the end of the year. Attorneys for the estate argue established New York case law exists, citing Badolato v. Rosenberg, where “in  the context of a physical examination conducted for the purpose of rendering an evaluation for a third party, such as an employer or insurer, an implied physician-patient relationship may arise if the physician either affirmatively treats the examinee or affirmatively advises the examinee as to a course of treatment.”

While the Valentini estate’s malpractice claim was dismissed by the district court, and its success at the appellate level is yet to be seen, the American Hospital Association (AHA) published a white paper in July, Commercial Health Plans’ Policies Compromise Patient Safety & Raise Costs, that characterize the prior-authorization process as “often inefficient, with excessive response times, lack of transparency in coverage criteria and inconsistent submission requirements across insurers.” The paper’s authors further determined that “many health plans apply prior authorization requirements in ways that create dangerous delays in care.”

Another concerning trend highlighted by the AHA white paper is the increasing number of “step therapy” policies that require patients to try and fail certain treatments — generally less expensive treatments, like physical therapy — before the insurer will authorize more costly treatments, even if it goes against the treating physician’s expert medical opinion. This approach, the authors wrote, “comes with a number of risks, not least of which is delayed start of effective therapies. Furthermore, health plan step therapy protocols vary significantly, and approvals are not transferable for patients who change insurers. This often requires patients and providers with established treatments to repeat step therapy processes, thus intensifying administrative costs and interrupting ongoing therapies.”

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