Corrections or additions?
This article by Barbara Fox was prepared for the November 20, 2002 edition of U.S. 1 Newspaper. All rights reserved.
Advice to Doctors
If you are a doctor — a general practitioner or
a primary care physician — and your failure to refer a patient
to a specialist results in that patient getting sicker or dying, you
can be sued — even though the HMO you work for might have discouraged
the referral. If you do refer the patient, you may have to pay for
Physicians can protect themselves against any potential future claims
by not allowing personal or financial interests to compromise their
sound medical judgment when making referrals and using hospital services
(U.S. 1, March 24, 1999).
Most often, these controversies result from HMO payment policies.
Most of them pay doctors a set amount per member patient per month,
no matter what services a patient might need. This is called a "capitation"
plan, and the HMO sets targets for everything from number of hospital
visits to number of prescriptions per member each month. For instance
an HMO may allocate $4.58 in radiology expenses per member each month,
or $18.01 for specialist care.
Meanwhile the HMO may withhold 20 to 30 percent of the payments and
put them in a kind of escrow, a Performance Risk Pool. At the end
of the year, if a doctor has had more than the allowed number of referrals
or hospital visits, the HMO keeps some or all of the money in the
risk pool, and if the risk pool is depleted, the HMO may even bill
the doctor for the extra.
Although it is in a physician’s financial interest to limit referrals
and treatments, if money clouds the doctor’s medical judgment, the
physician could end up in court. An example of insufficient treatment:
a man showed tell tale signs of stroke. Instead of being admitted
to the hospital for a full neurological evaluation, he was given an
outpatient CAT scan and sent home with aspirin. He died eight hours
Under state statute an HMO is prohibited from using financial incentives
to induce a health care provider to withhold covered health services
that are medically necessary. But there will be instances where your
medical decision will have an economic effect on your practice. Do
not allow economics to influence your medical judgment in any way.
amount, you want to know not only what percentage is withheld, but,
also, the number of other physicians included in the risk pool, and
how often the risk pools are reviewed and paid out.
in your contract. A stop-loss fund will pay for unexpectedly high
medical costs for a certain patient, so that the expenses will not
be deducted from your pool after they reach a certain amount.
services or medical treatment you must provide, and whether there
are any "carve-outs" or set fees for such services as immunizations.
from network specialists. Find out who pays for out-of-plan services.
If needed, make the out-of-plan referral, even if you will be penalized
regardless of whether that type of treatment is available under the
terms of the HMO plan. Now HMOs — attempting to protect themselves
against medical malpractice suits — often use broad contract language
stating that nothing constrains the provider’s ability to make needed
— or dictate into a recorder while the patient is sitting there
— your suggestion that the patient undergo a certain diagnostic
test or seek treatment from a specialist, even if outside the network.
If the patient declines an option, note audibly that the patient was
advised of a recommended treatment and has declined. If there is a
lawsuit, and your recommended course of treatment is noted in your
medical records, that would be considered by the court.
that is adverse to the health and wellbeing of your patient. Your
patient can appeal, but you as the doctor (with the patient’s consent)
can do it too. Most appeals deal with denial of hospital days, surgical
procedures, equipment, or skilled nursing care.
Though there is no law that the doctor must appeal an adverse HMO
decision, the duty to appeal is implied by the law protecting the
doctor from the consequences of appealing.
Your malpractice lawyer will find it more difficult to defend you
if you were not aware of your patient’s disease or condition.
good relationship with your patient is one of the best ways to avoid
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