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The Patients Healthplan Won't Approve the Tests/Treatment You Ordered!
Now What
By Waldene Drake, RN, MBA
V.P. Risk Management

What liability risk does a physician face when a request for medical diagnostic or treatment is denied or delayed by a healthplan? The answer lies in the physician's legal and ethical duty to guide the patient through an informed consent process regarding a delayed treatment or diagnostics. A denial or delay leaves the patient with the option either to pay for the service or to forego recommended care, while the physician challenges the denial. Failure to advocate in favor of the patient's best interests may expose the physician to liability.

Often, patients will not fully appreciate the implications of delayed care. For example, patients may not perceive the connection between a diagnosis of gastric carcinoma and the upper G.I. procedure that the physician ordered for recurring "indigestion." Nor will a pregnant patient necessarily realize that a "routine" ultrasound may identify potentially life-threatening complications, such as placenta previa, for her and her infant. Similarly, patients may believe that a colonoscopy is performed merely to stop rectal bleeding.

Physicians need to be concerned about the chance of a missed diagnosis due to delays. It is difficult to defend a "failure to diagnose" allegation when a patient with advanced malignancy testifies that, "I never understood that the doctor thought I could have CANCER!" Unfortunately, many of these cases also lack documentation of informed refusal in the patient's medical records. Recently, an arbitration was won for a CAP member, despite the witness's insistence that the physician failed to discuss any risks or complications of her upcoming treatment. The arbitrator chose to believe the physician based on the surgeon's specific note about the discussion in the medical record.

This discussion process should include enough information to allow the patient to make an informed decision (informed consent or refusal), about the proposed test or treatment. This includes the risks that refusing or delaying diagnosis or treatment may have on the patient's health. It is helpful to detail the risks, as well as benefits, alternatives, and risks of delay or refusal, specific to each situation. Without this communication, and documentation of the point of the discussion, it is difficult to defend an allegation of failure to diagnose or delay of treatment.

The flow chart below illustrates three steps in the authorization request process. First the physician should make his request clear, including patient history or illness and proposed treatment plan. It is also helpful if a cost-benefit analysis is included, e.g., why the requested diagnostic/treatment is the most cost-efficient plan, overall. Secondly an appeal should be pursued when the physician feels the care is essential to the patient's health. Lastly, patient advocacy is achieved via the informed consent process.

GOAL = OBTAIN PAYMENT FOR SERVICES

• Make request in courteous, professional manner.
• Include detailed history and treatment plan.
• Detail a cost-benefit analysis for the patient.

GOAL = REVERSE DENIAL OF PAYMENT

• Appeal per health plan protocol and copy to patient.
• Request a copy of clinical practice guidelines.
• Request discussion with Medical Director.
• Be open to alternatives to your recommendations.

GOAL = PATIENT ADVOCACY & INFORMED CONSENT

• Explain that the health plan has denied payment for the requested service. Explain that clinicians sometimes disagree on what is medically appropriate.
• Discuss the denial and your appeal activities, without disparaging remarks.
• Explain your opinion regarding the importance, minor or major, of obtaining the diagnostics or treatment in question.
• Explain risks and benefits of foregoing the treatment or diagnostics and the option of the patient paying for the treatment or diagnostics.
• Explore alternatives and explain the risks and benefits of alternatives, including doing nothing.
• Offer to assist patient with referrals, for diagnostics or treatment, to a county facility or community-funded program, if available.
• Document all the above patient discussion elements, including patient's informed consent OR informed refusal to proceed, pending payment authorization.