OBGYN.net: The Universe of Women's Health

MUSINGS: Strange Times  by Francis L. Hutchins, MD, OBGYN.net Editorial Advisor

Health care reform has produced a never-ending array of unusual situations. Since I pride myself on having a sense of humor I generally tend to not get too charged up over these things but rather view them as a much-needed source of entertainment. The following is a recent example of how I get my chuckles lately.

A 49 year old woman came to see me the other day for a second opinion and evaluation for uterine artery embolization for treatment of fibroids. She complained of very heavy periods, which significantly interfered with ability to persue her work as an employee at a major multi-international corporation. In addition, her abdomen was uncomfortably distended and she was experiencing chronic constipation. Pelvic examination and ultrasound had confirmed an 18 week ( 4 1/2 month pregnancy equivalent) fibroid uterus.

Her gynecologist had recommended uterine artery embolization (UAE) after discussing the full range of medical and surgical options. For that reason she had been referred to me.

In discussing this plan with her HMO, she was informed that they considered it an unproven treatment and would not pay for it. This was rather strange since this insurance company had been routinely paying for UAE for approximately two years. Subsequently a medical director for the plan called this patients gynecologist and told her that the plan would not pay for her to have a UAE because he felt the patient should be treated with Lupron and estrogen replacement (addback therapy).

This decision is now being appealed by the patient and the human resources department of her employer.

I think there are several problems here. The most obvious is that the HMO through its medical director is, in no uncertain terms, practicing medicine. Now, if the woman wanted the insurance company for her doctor that would be acceptable. But she has not asked them to diagnose and treat. In, addition they have had no discussion with her regarding her goals, wishes or aspirations. In the modern practice of medicine, physicians attempt to engage the patient as a partner, co-equal, in an informed discussion of the diagnosis, treatment options, their risks, benefits and alternatives. Her HMO did not do this but rather in the fashion of old fashion medicine chose to dictate to this "little girl" what "big daddy" knew was best for her.

Even if one ignores the rudeness of this intrusion into this woman's care there is another more insidious problem with this practice. That is the fact that an HMO cannot be held liable for malpractice and can therefore not be held accountable for any treatment decision they make. Thus if in the course of undergoing the treatment prescribed by the medical director an injury occurs the insurance company cannot be sued. In my state, as well as many others carrying malpractice insurance is a requirement for a healthcare provider to obtain a license to practice. The reasoning of the state is that carrying malpractice insurance is an ethical obligation for physicians and other providers to assure that there are sufficient resources to remedy any injury incurred when malpractice is committed.

Finally, HMOs are not licensed to practice medicine to the best of my knowledge.

The bottom line is that in these situations the insurer is practicing medicine without a license. Even if it wanted to obtain a medical license it couldn't or shouldn't be granted one because by federal law it cannot be sued for medical negligence and this fact thwarts the intent of the state to protect the interest of the consumer/patient.

Suppose this woman were to follow the mandate of her HMO and after several years of treatment she developed severe osteoporosis, fractured her hip and became permanently disabled from complications of hip replacement surgery. If rightly or wrongly she felt that her treatment for fibroids had been negligent and had caused her osteoporosis, she has no legal basis for seeking reimbursement for her injury.

This is an example of my sense of humor. I think this situation is ludicrous. I could get quite angry and frustrated. Instead, I turn it into therapeutic laughter to brighten my day.

What do you think? Was the HMO practicing medicine? If yes was it doing so illegally, without a license? When a patient is enrolled with an HMO should there be a contract for care that excludes the physician from responsibility except as a technician under the supervision of the insurer?