Do payers support tort reform?

Lucien Roberts is an administrator and member of our advisory board. He had some comments about payers and tort reform, and the following post is his column.

Do payers support tort reform? On the surface, perhaps, but in the trenches, not at all. Here’s my litmus test.

You, dear doctor, are confronted in the exam room by a patient demanding a head MRI. Said patient went online last night and learned that headaches are the primary symptom of brain tumors. The MRI is not warranted by the patient’s history and physical. Further, the best practice clinical guidelines used by the payer do not support the MRI. You do not order the MRI, despite the patient’s protestations.

Six months later, the patient is diagnosed with a glioblastoma.
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She is that one in however-many-thousands. She sues you, and your career as you know it will never be the same. You will order more MRIs, for discretion will never again be the better part of your valor.

Where was the payer as this unfortunate case unfolded? Good question. If the payer truly supported tort reform, it would stand both behind and beside you in this scenario. The payer would affirm that your actions were clinically appropriate and ask that the lawsuit be dismissed. After all, you were following the dictates of the payer — and not the insistence of the patient — in not ordering the MRI.

Unfortunately, this scenario plays out every week. Patients are not widgets, and even the broadest clinical practice guidelines will not catch every anomaly. Until payers stand behind their clinical practice guidelines and beside physicians, they are not substantively supporting tort reform. That is my solid opinion.
To their credit, the board of directors of the America’s Health Insurance Plans (AHIP) proffered a December 2008 proposal that included the following affirmation:

“The nation should also explore approaches for replacing our medical liability system with a new dispute-resolution process that is fair to patients and protects physicians against liability if they follow best-practice standards.”

AHIP estimates potential savings of $45 billion over the next five years. Unfortunately, their press releases in recent months have not emphasized, much less mentioned, this key element. This last statement is important. If AHIP truly supports tort reform as a critical piece of the healthcare reform puzzle, it must keep the dialogue on the front burners.

How many payers in your market will stand behind you when something bad happens while you follow their clinical practice guidelines? I suspect the answer is “zero,” and that is most unfortunate. Best practice guidelines, in the absence of payer support of tort reform, are but cloaks to hide payers from patient litigation. They guide and restrict the way you practice, but do nothing to protect you.

If AHIP and its members want to make a real statement about tort reform, they must replace their rhetoric with action. Now. Give a backbone to best practice guidelines and have the courage to support physicians who follow them. So, do payers truly support tort reform? Not yet, but this would be a great way to start.

Lucien Roberts, III, MHA, FACMPE, is executive director of Neuropsychological Services of Virginia. He also consults with medical groups and health systems in areas such as compliance, physician compensation, negotiation, strategic planning, and billing/collections. He may be reached at lucien.roberts@yahoo.com.