North Carolina patient Kathleen Valentini was referred by an orthopedic surgeon after suffering excruciating pain in her right hip. The pain continued to worsen. The orthopedic surgeon ordered an MRI after an x-ray failed in revealing the problem.
Valentini’s insurance, however, refused to cover the MRI and stated that it was not medically necessary. According to federal court documents on PACER, Group Health Inc (GHI), the MRI would only become medically necessary if Valentini fails to improve after six weeks of physical therapy.
The insurer denied the claim immediately. He argued that not only was the MRI required, but Valentini also had just completed a full program of physical therapy, which the insurer had covered.
GHI’s denial was reversed almost 40 days later. An MRI scan revealed that Valentini had a sarcoma of the right hip on March 14, 2019. The doctors at Memorial Sloan Kettering, New York, gave the Valentinis a grim report. Oncologists could have started chemo without Valentini coming to them sooner. However, doctors would have to amputate Valentini’s leg, hip and pelvis if they had not received the news a month earlier.
Steve Cohen, an attorney representing Valentinis in a lawsuit against the insurance company, said that it was “devastating”. “Half her lower body was amputated. She was a vibrant, healthy woman. Everything was perfected by the doctors. They advised the best treatment. They took the time to get this simple MRI approval. Everyone did the right thing. We claim that the insurance company and its utilization-review company did not do this.”
EmblemHealth, which is the parent company of GHI, stated that it does not comment on any pending litigation. EviCore (the utilization review company) did not respond to messages requesting comment.
Further tests revealed that Valentini had cancer nodules in her right lung. Two years later, she died. According to the family’s lawsuit, Valentini died 2 years later due to the delay in diagnosis and the lack of prior authorization.
This case is just one example of the many ways prior authorizations can hinder physician treatment and negatively impact patient care, stated Ron Adelman MD, president of the Connecticut State Medical Society.
According to a survey conducted by the American Medical Association in 2021, ninety-three per cent of physicians believe that prior authorizations can delay patients’ access to needed care. According to the American Medical Association (AMA) survey, 82% of physicians said prior authorization problems can lead to patients abandoning care, while more than a third reported that it had caused severe adverse events.
Physicians say this problem is especially acute for patients with cancer. According to a 2022 study by Cardinal Health, nearly 90% of oncologists consider prior authorizations to be a barrier to patients receiving new medications. Moreover, 80% believe that the process negatively impacts patient outcomes.
Adelman stated that insurance companies and their agents should be held responsible if a patient’s condition is negatively affected by a delayed authorization.
He stated that prior authorization can be destructive to the patient-physician partnership by inserting itself into the decision-making process in ways that are disconnected from the realities and essentials of patient care. Patients and their families are ultimately hurt when an infection spreads or a cancer grows.
America’s Health Insurance Plans, a trade association of health insurers declined to comment on the Valentini matter. Kristine Grow (AHIP senior vice president of communications), stated that prior authorizations are a good way to provide the best, most cost-effective, and safest care for patients.
She stated that prior authorization prevents waste and makes it more affordable for consumers, patients, and employers. “Health insurance providers take a holistic view of each patient’s medical history and health care system. They work to ensure that prescribed medications and treatments are affordable, safe, and effective for patients. Patients will see better outcomes and pay less. Innovative solutions are being implemented by health insurance providers to improve processes, lower costs, increase quality, and improve patient care.
Valentini, 47 years old, visited her primary physician in November 2018, after experiencing pain in her right leg. The doctor recommended that she undergo conservative physical therapy and take naproxen.
Valentini followed his directions and completed the physical therapy. However, the pain started radiating down her right thigh and the pain medication didn’t help. Court documents show that this was because Valentini did not take the prescribed pain medication. She then saw an orthopedic surgeon, who ordered an MRI.
Cohen stated that it is unclear why GHI or eviCore didn’t recognize that Valentini had completed physical therapy before they denied him an MRI. Cohen said that the history was already in the medical record and that the orthopedic surgeon had provided the information after the denial.
He said that the doctors involved were extremely frustrated. “Despite doctors pointing out she had completed the PT, the defendants ignored the evidence and demanded that the doctor go through the lengthy appeals process.”
Attorneys for eviCore stated that the timing of coverage determinations was consistent in accordance with its policy’s utilization review procedures. In a court memorandum, eviCore attorneys stated that Valentini appealed the original coverage decision. This was within weeks of Valentini’s initial request. They also noted that the appeal and prior authorization were not requested on an expedited basis.
Valentini sued the insurance company in October 2020. Her estate then took over the legal challenge following her death. GHI and eviCore are also being accused by the family of negligence and medical malpractice.
GHI and eviCore owed Valentini a duty to “act reasonably and use due diligence with respect to her treatment and care.” They also claimed that Valentini’s treating doctors wrongly overruled Valentini’s judgment and incorrectly advised that an MRI wasn’t medically necessary. Valentini suffered injuries because of the inability of GHI and its agents to provide proper and effective medical care.
GHI and eviCore attorneys asked a federal court for dismissal of the complaint because it failed to state a valid claim.
Attorneys wrote in their court memorandum that “all plaintiffs’ tort claims fail because defendants owed not legal duty of care according to New York tort law and the complaint other than lacks plausible facts sufficient to support any tort-law cause of action.”
GHI was ruled in favor by John P. Cronan, a US District Judge. The complaint was dismissed in 2021. Cronan stated that Valentini was not under the care of his health insurance.
Cronan’s decision stated that the defendants did not directly examine Kathleen and that there were no non-conclusory facts proving they provided medical advice. “Any reliance Kathleen placed on eviCore’s determination was based upon her willingness and ability pay for treatment. This does not create a New York duty.
The judge ruled that the medical malpractice claim was barred because Valentini had no physician-patient relationship with GHI/eviCore.
It isn’t over. Valentini’s family appealed to US Appeals Court for Second Circuit. They are not alone in this fight. In support of Valentini’s case, the AMA filed a brief before the appellate court, joined by the Vermont Medical Society and the Connecticut State Medical Society.
“This case is important because it shows how excessive and unwarranted authorization control that harm patients when evidence based care is delayed or denied and disrupted can be harmful,” Jessa Barnard said, the executive director of the Vermont Medical Society. “We ask the court to determine that eviCore owed Mrs Valentini a duty to assist her in obtaining the medical care that she required, and not to impede her efforts to obtain that care.
Appeal to the Second Circuit by Valentini centers on whether an insurer has a duty to provide care for an insured patient. Valentini’s attorneys argue that this duty is supported by New York case law.
Kroll v. Landon is an example. The New York Court of Appeals ruled that Kroll, a drug-testing laboratory that was contracted with a county probation officer, owed a duty of respect to a plaintiff who submitted a specimen for testing as a condition of his probation. Kroll and the plaintiff had no relationship or contact.
New York courts also found that doctors employed by insurance companies can be held liable for malpractice if they provide negligent advice that is relied upon by patients. Badolato, v. Rosenberg was an example. The court held that in the context of a physical exam conducted to render an evaluation for an employer or insurer, an implied doctor-patient relationship could arise if the physician affirmatively treats or advises the examinee regarding a course or treatment.
According to the appeal of the family, Valentini’s medical negligence claim is based upon these standards.
The Second Circuit is being offered an alternative argument by the AMA and state medical associations. The physician associations claim that eviCore’s website stated that it would act for the patient so that the patient receives proper medical care.
The associations stated in their brief that eviCore claimed to be a patient-focused company, hoping to make a name for itself in the market and attract more business. However, Mrs Valentini and all other insureds owed eviCore a duty not to block their medical needs by looking through their policies for loopholes where the insurer could deny them benefits. Its duty included the standard healthcare obligation to first do no harm.
The Second Circuit will hear the case in winter or fall 2022.
The case could have wide-reaching consequences for doctors, patients, health insurance companies, and physicians if the Valentinis prevail in their suit.
Barnard stated that a favorable decision for Mrs Valentini would encourage health insurance companies to take greater care in refusing or delaying payment for medical care as a result of the prior authorization process.
Cohen adds that insurance companies would be held more accountable if prior authorization delays diagnosis or prevents treatment. He said that preauthorizations that harm patients would bring them more liability.
Adelman stated that a win for Valentini’s family would be a victory to all organized medicine.
He stated, “Hopefully, this case will prove that the consequences from the broken prior authorization process were real, tangible and contributed to the untimely demise of the patient.”
Alicia Gallegos, a reporter at Medscape Business of Medicine, is based in the Midwest. She previously wrote for the American Medical News and the ACP Internist. Contact Alicia at agallegos@medscape.net or via Twitter at @Legal_med.
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