Special Treatment for Insurers and Protection from Malpractice

If your health insurance company denies your doctor’s request for a necessary test and, months later, when they finally approve your condition has deteriorated and is no longer easily treated, your health insurance company is immune from suit in New York. If a doctor commits malpractice, he is held accountable. However, if your insurer arbitrarily denies testing or treatment deemed necessary by your doctor, it escapes responsibility for the consequences. 

Your insurance company cannot be held responsible even though it is the one practicing medicine, steering the course of treatment, cutting costs whenever possible. If a delay in diagnoses results from the insurer’s refusal to pay for the necessary testing, it has caused injury by preventing early diagnosis and treatment. If the treatment plan is dictated by the insurer, how can the doctor be held responsible when the decision making process was taken away from him? After all, it was the insurer who denied access to a test that the doctor deemed medically necessary. If the insurer is going to practice medicine, it needs to be held responsible. 

A young man recently came to us after consulting with several doctor for a mild hearing loss. None of the board-certified ENT doctors could find a cause for the hearing loss. Each doctor recommended an MRI study of the brain, which the insurer consistently denied as unnecessary. 
After six months and a continued loss of hearing, the insurer finally agreed to permit a CAT scan which not surprisingly showed nothing. Finally, after nearly one year after the symptoms began, an ENT doctor finally got approval for the MRI, which revealed a brain tumor. Unfortunately, the client had already suffered a complete hearing loss in his left ear. It was uniformly agreed that if the MRI been authorized when first requested (more sensitive test than a CAT scan), his hearing would have been preserved. The failure to treat the tumor early resulted in permanent deafness. 

What are you to do when the medical decisions are taken away from your doctor by your insurer? If you have the money, you could pay for the MRI yourself, but most people don’t have a spare $1,800 to spend on a test which should be covered by their health insurer. After all, isn’t that why we pay high insurance premiums each month? By collecting large amounts of premium dollars and then refusing to spend them on necessary tests, the insurers make big profits. Does any one see the conflict which occurs when we allow insurers to police themselves and decide what tests they will pay for and what they will not? And then shelter them from the consequences? Where victims are left without remedies, there is clear injustice. 

Under current NYS law, your health insurer is immune from liability under Federal Laws which pre-empt lawsuits against health insurers. Does this concern you? Just think about the control that healthcare insurers have in dictating the maximum fees that doctors are allowed to charge. Do you think price-fixing is a violation of the anti-trust laws, which stifles competition? Insurers are exempt from anti-trust laws. This is yet another example of how powerful insurers get away with making their own rules, while operating outside the laws that govern everyone else. 

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