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Anesthesiology and Managed Care

The liability pitfalls created by managed care have important implications for anesthesiologists.

Anesthesiologists have encountered the onset of managed care largely in the form of dwindling caseloads and falling reimbursements. The specialty has been somewhat insulated because anesthesiologists do not function as traditional gatekeepers, nor do they need to apply frequently for authorization consents. There are aspects of managed care, however, that have an impact specifically on the specialty of anesthesiology.

Advocacy and Cost Containment

A new, additional role for the physician is that of patient advocate and intermediary whenever a dispute arises between medical judgment and a health plan. This point is best illustrated by a 1986 seminal court case that occurred in California. Wickline vs. State of California involved Medi-Cal’s refusal to authorize a more prolonged stay for a woman who was required to be discharged from the hospital following vascular surgery. (Medi-Cal is the state’s medical assistance program.) The surgeon and family practitioner wrote Mrs. Wickline’s discharge orders without further attempts to obtain authorization for additional recuperative hospitalization. During her recovery, Mrs. Wickline’s leg developed a loss of circulation and was subsequently amputated. The surgeon agreed that the leg’s deteriorating condition would have been observed and corrected if the patient had remained in the hospital longer. Mrs. Wickline sued Medi-Cal and won, but the California Court of Appeals reversed the decision. The appellate court ruled that the physicians were in a better position than Medi-Cal to determine the appropriate length of hospitalization.

Regarding Anesthesiologists

The implications for you as an anesthesiologist are subtle but important. What if a managed care plan has authorized only an outpatient procedure and the patient develops a worrisome arrhythmia in the recovery room? What if a hurried surgeon refuses your request for a cardiology consultation because he/she dislikes the authorization process? What if you call the managed care payer and receive authorization only for a one-day admission to a nonmonitored bed? The message from the Wickline case is clear: You are expected to exercise independent medical judgment in the best interest of your patients—regardless of the influence of third-party payers. The Wickline case demonstrates that a physician who complies with limitations imposed by a third-party payer or gatekeeper—when his/her medical judgment dictates otherwise—is ultimately responsible for the patient’s care.

What does that mean for anesthesiologists in practical terms? When disagreements occur, doctors are responsible for documenting and being able to prove that they made every effort on behalf of the patient. You are strongly advised to keep detailed notes of explanations to patients as well as discussions with decision-making personnel at the payers’ headquarters. Most importantly, whenever possible, you should provide optimal medical care and worry about reimbursement later.

Cost vs. Care

In an effort to reduce costs, physicians in a managed care plan may be encouraged to reduce the number of specialty referrals or laboratory tests. In such instances, again, anesthesiologists may find themselves in jeopardy. If you believe a preoperative cardiology or pulmonary consultation and clearance are necessary for appropriate anesthetic management, the consultation should not be withheld because of cost containment concerns or reluctance on the part of primary care gatekeepers. Treatment rendered to all patients must meet the same standard of care regardless of the nature of their health plans. Preoperative laboratory workups, chest x-rays, and electrocardiograms also should be insisted upon when appropriate.

Hold-Harmless Agreements

Some managed care provider contracts include provisions stating that the contracting physician agrees to hold the managed care organization harmless should he/she be named in a malpractice claim. This provision may result in an assumption of personal liability by the doctor. If a malpractice claim names a physician along with the managed care plan—even if the case is frivolous and ultimately dropped—the managed care organization can seek to recoup its defense costs from the physician. Expenses of codefendants are not covered by malpractice insurance and, as a result of the hold-harmless agreement, can be demanded from the contracting physician. It is imperative that all physicians and groups read their managed care contracts carefully to ensure that all terms and conditions are understood.

Note: Effective January 1, 1996, California legislation made hold-harmless agreements between physicians and managed health care plans “void and unenforceable” (California Health and Safety Code 1371.25). Physicians are warned, however: 1) to pay attention to current contracts; 2) that the law has not been tested in courts and probably won’t be deemed retroactive; and 3) that common law bases of liability remain a liability risk to physicians.^*

Summary

As more and more physicians, including anesthesiologists, change how and where they practice in an effort to keep pace with the managed care environment, risk exposures become all the more significant. Our regional risk managers are available to respond to your questions, or you may call The Doctors Company Risk Management Department at (800) 421-2368, ext. 1243.

^*Medical Liability Monitor, 6/15/96.

J3209 9/99

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