Covid-19, Peer Review and Greater Liability

covid-19

Covid-19 has created a new reality for peer review doctors, insurance companies and even treatment guidelines. For those persons and entities which do not understand nor embrace that reality, civil and possibly criminal ramifications exist.

Issue: Your son or daughter has a severe eating disorder and is currently receiving treatment at a residential treatment center. This treatment center has implemented lock down procedures to lessen the likelihood of its patients being infected by Covid-19. The insurance company is now demanding that the patient be stepped down from residential care. If that decision is not overturned in the peer review process, the patient, your son or daughter could be forced to leave the residential program and travel home.

That means: your son or daughter could be exposed to Covid-19 in the taxi on the way to the airport; at the airport; in the airplane; at the airport in their home city; on the way home. In addition, your son or daughter could then be subject to a fourteen (14) day quarantine requirement in the (currently) twelve (12) states requiring quarantine for those who travel from outside that state. Further, governors from forty (40) states have issued stay at home executive orders.

To follow up for much needed care from your discharge treatment team at home, you will need to schedule an in-person doctor’s appointment. The doctor overseeing their treatment at home undoubtedly will want to take blood and urine tests to establish a starting baseline for the next phase of your loved one’s recovery. Isolating and physical distancing will exacerbate your loved one’s condition. Of even greater concern, if your loved one has a severe relapse episode or related serious health issue, they will need to be taken to the emergency room.

Since your loved one is receiving treatment at the residential treatment level, it is likely that their immune system has been compromised and they are at greater risk for contracting the Covid-19 virus.

And yet, a decision is made to step them down from treatment that may have been effective and which kept them as safe as possible from exposure. All because the insurance company made a financial decision which was solely in their best interest.

Fiduciary Duties and Duty of Good Faith

Most courts  recognize a common-law (or statutory) duty of good faith and fair dealing with regard to insurance companies.  Courts recognize that a special relationship exists in the insurance context due to the increased bargaining power an insurance company has in the insurance claim settlement process.  Because an insurance company has the ultimate control over the evaluation, processing, and denial of its insureds’ claims, it has the potential to unscrupulously take advantage of its position of power and treat its insureds unfairly. As such, courts hold that the insurance company has the duty to act in good faith and to deal fairly with its insureds.

An insurance company is liable for acting in bad faith if it denies or delays payment of a claim when it knows or should know coverage is reasonably clear.   If the insurance company has no reasonable basis for denying or delaying payment of your claim, and does so regardless, it is in breach of the duty of good faith and fair dealing.

Additionally, if the insurance company does not properly and thoroughly investigate your claim, the insurance company is liable for acting in bad faith.  The insurance company must adequately investigate your claim before denying it.  If the insurance company merely investigates your claim for the sole purpose of denying it, it is liable for bad faith.

For the purposes of reviewing claims for additional treatment at the residential treatment center level, focus is placed on the peer review process.

Peer Review Doctors

Your insurance benefits provider must also employ Peer Review physicians in good faith, physicians who are competent and who must hold the insured’s needs paramount. And yet, by its very nature, the Peer Review physician is occupying an adversarial position to  your treating doctor.

A peer-to-peer review is typically done as a scheduled telephone call between the Peer Review physician acting on behalf of the insurance provider, and the healthcare professional who requested the review. Ideally, the Peer Reviewer applies the health plan’s medical coverage guidelines to the clinical information, uses clinical judgment, and renders a decision. Although the Peer Reviewer is a delegate of the insurance company, allegedly the Peer Reviewer receives no financial incentive to deny or to approve a request.

In practice, the reality is different. A number of medical doctors and counselors have advised that the peer review process is woefully flawed. Stories of peer review doctors being unprepared, of not having all relevant documentation, of allowing their assistants to conduct the peer review, of having no objective, reliable treatment guidelines in place are rampant.

Last year, in the case of  David Wit, Individually and on Behalf of Others Similarly Situated, et al v. United Healthcare Insurance Co., et al, Civil Action No. 3:14-cv-02346, a federal district court in San Francisco determined that United Behavioral Healthcare, in every version of its Guidelines at every level of care placed an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions. 

This overemphasis on treatment of acute symptoms was found not only in the admission criteria of the challenged Guidelines but also in the continued service and discharge criteria that applied to all levels of care.

The Court found that the financial incentives infected the Guideline development process. In particular, instead of insulating its Guideline developers from financial pressures, UBH placed representatives of its Finance and Affordability Departments in key roles in the Guidelines development process.

In short, UBH was more concerned about increasing their revenue than the well-being of their insureds. Similar cases are pending against a Blue Cross entity in the State of Florida, against Optum in a state court in Utah and against other insurance companies in other courts throughout the United States.

At this particularly challenging time in not just the history of the United States, but global history, unscrupulous entities which do not take into account the realities of Covid-19 and the manner in which the virus impacts the delivery of medical and mental health treatment will find themselves liable under new theories of accountability. Both civilly and potentially criminally. Especially to our most vulnerable citizens.

Many People with eating disorders have compromised immune systems

A research study  published in the July 2019 issue of the Journal of Child Psychology and Psychiatry, revealed there is a strong relationship between eating disorders and autoimmune diseases, especially in women. The most prevalent autoimmune illnesses in the sample were celiac disease  (related to malabsorption and intestinal sensitivity to Gluten), type 1 diabetes (related to the body’s inability to produce sufficient insulin), and psoriasis  (a skin condition).

Analysis of the relation between eating disorders and autoimmune illnesses showed that in both men and women, previous autoimmune illness was associated with an increased risk for eating disorders. In fact, that study found women diagnosed with any eating disorder had a 114% increased risk of being diagnosed with an autoimmune illness in the following year.

Compromised immune systems are more susceptible to disease.

It has long been understood that people whose health is compromised for any reason are more likely to be susceptible to disease and can have more severe symptoms than a healthy and robust person. A person’s body ravaged by an eating disorder may be an ideal place for viruses or bacteria to take root and thrive. And then take their life.

Both small and large amounts of virus can replicate within our cells and cause severe disease in vulnerable individuals such as the immunocompromised. In healthy people, however, immune systems respond as soon as they sense a virus growing inside. Recovery or possible death depends on which wins the race: viral spread or immune activation.

Civil or possible criminal liability

And so, our current situation is:

  1. Insurance companies’ enforce treatment (read, “payment”) guidelines which do not have to comply with generally accepted standards of care;
  2. These insurance companies are making adverse, medical decisions refusing to pay for potentially life-saving treatment for patients;
  3. The patient’s treating doctor disagrees with the insurance company’s decision and cites reasons supported by the patient’s current symptoms and status using generally accepted standards of care;
  4. Ultimately, the peer review doctors almost universally agree with the insurance company’s determination;
  5. The peer review doctor knows, or should know that the vast majority of times, eating disorder patient’s immune systems are compromised;
  6. The insurance company and peer review doctors have actual knowledge that the insured/patient, with a compromised immune system is being released in an environment in which the Covid-19 virus is rampant and is causing widespread death;
  7. The insurance company and peer review doctor know, or should know that being forced to quarantine or isolate away from human interaction in all reasonable medical probability, is going to cause a relapse of eating disorder symptoms;
  8. If the insured/patient contracts Covid-19, with their compromised immune system, they are much more likely to succumb to Covid-19.

This course of conduct is ripe for litigation. The failure to evolve treatment protocol and guidelines to adapt to the reality of Covid-19 is at best negligent. At worse, it could cost a business entity millions of dollar in damages. The damages, including exposure to Covid-19 and dying from such exposure are reasonably foreseeable to the insurance company and peer review doctor. And reasonable foreseeability equates to civil liability. And possibly criminal liability.

The crime of “Culpable Negligence” is defined as a course of conduct “showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or . . . which shows wantonness or recklessness . . . [or] an indifference to the rights of others as is equivalent to an intentional violation of such rights.”

Under Florida law, Culpable Negligence may be classified as second degree misdemeanor (punishable by up to 60 days in jail), a first degree misdemeanor (punishable by up to 1 year in jail), or a third degree felony, punishable by up to 5 years imprisonment.

Where the culpable acts of the accused merely “expose” another to a danger without injury, the offense is a second degree misdemeanor. Where the accused’s actions actually inflict personal injury, it is a first degree misdemeanor.

For insurance companies and their peer review lackeys, liability is present. The rules have changed. Parents, treatment providers, fellow insureds, the time is now to be aggressive asserting your rights. COVID-19 is an unprecedented public health emergency – both in the rapid spread of the disease and because of the sweeping nature of some the measures States have taken in their responses to it. Fortune favors the bold. For the sake of your loved ones, for their very lives, you must be bold. It is YOUR turn now.

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