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[IP] Malpractice (long)

email @ redacted wrote:

> I wonder, can we sue those reviewing physicians
> for malpractice --especially when they're making medical decisions for
> patients they've never even seen and for whom they have much less than the
> complete medical information that they should have prior to making medical
> decisions . . .

It's been a while since my medico legal class, I am not a lawyer, and I have
never been sued, but here's my understanding.  There are a few things that must
be present before you can sue for malpractice.  The first and probably most
important one here is that there must be an expectation of accountability (I
don't remember the actual legal term), meaning that for them to commit
malpractice against you, you have to reasonably expect that they are accountable
to you and are only working for your interests.  When you walk into a doctor's
office and agree to pay him money, either directly or through your insurance, you
are effectively contracting him to provide medical care to you.  You have a
reasonable expectation that he is accountable to you directly.  The doctor that
the insurance hires to review your case and help them make decision works for
them and not you.  You have no reasonable expectation that he is accountable to
you or working for your interests.  The insurance company itself, on the other
hand, is hired by you and accountable to you, so you might have a case against
them, though I don't know if it would officially be "malpractice" or not.

In addition, to bring a malpractice suit, you have to show damages.  Not being
able to get something you would like is not damages.  When you develop
nephropathy, neuropathy, and retinopathy, you might be able to convince the
courts that had the insurance company given you a pump these could have been
prevented and therefore the insurance company has injured you.

Lastly, for malpractice, you have to show that they went outside of the standards
or were negligent.  You can't sue a doctor for malpractice if he simply makes an
error in judgment or a mistake in practicing the normal standards (if a doctor
cuts an important nerve or artery during surgery it is considered a normal risk
of surgery unless the doctor is trying some fancy technique which is not
considered to be a standard treatment and increases the chance of cutting the
nerve or artery).  If he ignores some relevant information or if he does not
follow the standards (doesn't do the normal tests or treatments for that
situation) and there is damage, then he may have committed malpractice.  Since
the insurance company is following their standard protocol (which is also similar
to the ones used by the other insurance companies) and they have asked for their
standard documentation, there is no negligence and they are not outside of the

This doesn't mean that a lawyer couldn't help you.  I'm sure there are other
legal ways to force the hand of an insurance company besides malpractice.  But
remember also that the insurance company has a lot more money than you and their
lawyers know how to drag the case out until you are broke.  Threatening them is
fine, but they'll most likely ignore it because they know you'll never stick it
out until the end of the case.

> We called immediately and made them (the insurance company) fax us a copy of
> the criteria they use for making decisions about pumps (which they called
> their "Medical Policy").
> This information was used to frame the 2nd letter from our doc and
> specifically stated information that met their criteria (such as her having
> had frequent hyper & hypo glycemia events below/above their specific cut off
> numbers, that the "patient has demonstrated ability and commitment to comply
> with the regimen of pump care .  . ." etc. etc. ) -- by using THEIR language
> verbatim and documenting that their criteria was being met, it made it very
> obvious that they weren't going to have an easy time explaining a second
> denial . . . which didn't happen -- we got approval within 24 hours after the
> insurance company received the  doctors 2nd letter . . .

This is an excellent tactic.  They are required to give you such information
(though they may make you jump through some hoops and wait) and if they still
refuse to give you the pump (or whatever the request is), then they are no longer
following their standards and have opened themselves up for legitimate suits, not
only for possible malpractice, but for discrimination and a number of other

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