Malpractice Consult

By Lee J. Johnson, JD

When an insurer won't cover your best advice

• Many physicians don't discuss treatments that aren't covered by insurance.

• You have an ethical and legal obligation to discuss all useful options.

• Patients must be offered the choice of paying out of pocket.

Q: My patient's insurer won't cover a medication I'd like to prescribe, although it will pay for a similar drug that, in my opinion, is less effective and can have undesirable side effects. The patient can't afford to pay out of pocket. Am I obligated to tell her about the medication I prefer?

A: If you believe the noncovered medication would be medically useful for this patient, you're ethically and legally obligated to discuss it with her.

Patients have the right to be "informed of all pertinent medical information, and physicians have an obligation to assure the disclosure of medically appropriate treatment, regardless of cost," according to the AMA Code of Medical Ethics.

In the recent past, "gag clauses" imposed by some plans prevented doctors from discussing noncovered services. But those rules have been legally banned, or abandoned by insurers.

Legally, doctors are held to the standard of providing a complete informed consent discussion, including the risks and benefits of all alternative treatments. If the medication you'd prefer to prescribe has fewer side effects and greater efficacy than the one covered by the patient's plan, those facts are germane to the discussion.

Suppose you prescribe the covered drug and the patient has a bad reaction resulting in costly medical procedures or a permanent disability. You'd have a hard time defending yourself in a malpractice lawsuit that includes a claim that you didn't provide informed consent.

The question you raise is a common one, though. In a recent national survey, physicians were asked how often they withheld information from patients about useful services because of perceived coverage restrictions. Some 31 percent answered "sometimes" or "often." And this practice is becoming more prevalent. Of the doctors who reported sometimes declining to offer useful services, 35 percent said they've done it more often in the last year than five years ago.

One reason physicians withhold information, the survey found, is that they worry patients will ask them to "game the system" by manipulating plan rules, a practice most doctors are unwilling to do. "Some physicians might elect not to discuss useful but uncovered services in the hope of avoiding these tense situations," the study noted.

What can you do? Inform the patient fully of all treatment options and why you prefer one over the others. If necessary, offer to appeal the insurer's payment denial. You could also suggest that the patient pay for the services or medications out of pocket, or encourage the patient to switch insurers. Finally, you could provide the service without charge.

While these suggestions may be impractical in most cases, offering them gives the patient the information he needs to make a decision. Legal and public opinion are clearly on the side of discussing all relevant information with the patient. Refusing to do so because of inconvenience or possible confrontation with the patient or his insurer won't be well received by a jury if there's an adverse outcome.

Lee Johnson. Malpractice Consult: When an insurer won't cover your best advice. Medical Economics Nov. 7, 2003;80:95.