“This Court is of the opinion that, as a matter of law, a medical standard of care cannot be tied to or controlled by an insurance company or the need for payment. The “bean counters” in an insurance office are not physicians. Medicine cannot reach the point where an insurance company determines the medical standard of care for the treatment of a patient. Nor, can we live in a society where the medical care required is not controlled by the physicians treating the patient. The position advanced by [the defendant’s] expert tells us that the standard of care is different for those with money than for those without. This is neither moral nor just. It is wrong.”
These wonderful words frame the case of Murray v UNMC Physicians , 806 NW2d 118 (Neb 2011). The facts of this case are simple. The patient had a medical condition that could only be treated by a certain drug. Once this drug is started, it becomes life-threatening to discontinue its use. This drug costs about $100,000 a year. Therefore, it is not uncommon practice to seek prior authorization from the patient’s insurance carrier about whether it will not only pay for it but continue to pay for it over the remainder of the patient’s lifetime. Between the time when the insurance preauthorization was filed and before a decision had been reached, the patient died. The argument was that if the drug had been administered immediately, the patient would have survived. So, the issue surrounding this case was whether waiting for preauthorization of payment for the needed treatment was within the standard of care.
Does this case have anything to do with orthodontics? Absolutely not. Well, at least not directly. However, there are some parallels to be drawn and some thinking about the future that should be undertaken. The following paragraphs are the “guts” of the court’s decision. Enjoy.
“In Nebraska, …the standard of reasonable and ordinary care is defined as “that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances.” That standard is consistent with the general common-law rule and is a so-called unitary, or wealth-blind, standard of care. In other words, the standard of care is found in the customary practices prevailing among reasonable and prudent physicians and must not be compromised simply because the patient cannot afford to pay. That standard of care, however, developed in a world of fee-for-service medicine and persisted while health insurance still primarily provided first-dollar unlimited coverage. Today, health plans and self-insured corporations are placing increasingly stringent controls on health care resources, thereby limiting physicians’ freedom to practice medicine as they see fit. Clinical guidelines have proliferated from a wide variety of sources: managed care organizations, medical subspecialty societies, malpractice insurers, entrepreneurial guideline-writing firms, and others. Each guideline purports to tell physicians the best way to practice. Yet often they conflict with each other, with traditional practice patterns, and with patients’ expectations. But because tort law expects physicians to provide the same standard of care regardless of patients’ ability to pay, and because this standard sometimes encompasses costly technologies no longer readily available for the poorest citizens, physicians are caught in a bind between legal expectations and economic realities. Courts have been accused of being “oblivious to the costs of care, essentially requiring physicians to commandeer resources that may belong to other parties, regardless of whether those other parties owe the patient these resources.” It has been suggested that at a fundamental level, a unitary, wealth-blind standard of care cannot be reconciled with the growth of technology and the stratification of available health care. Custom is increasingly difficult to identify in today’s medical marketplace, as resource distinctions produce fragmentation and disintegration. It has also been suggested that maintaining a unitary standard of care disadvantages those who may not be able to pay for health care. Physicians remain free, for the most part, to decline to treat those who cannot pay, and an outright refusal to treat an indigent patient, in contrast to a decision to treat in a manner inconsistent with the unitary malpractice standard, rarely creates the threat of liability. So, it has been argued that rather than assume the burden of paying for a patient’s treatment, or the potential liability of providing some but not all possible care, the unitary standard makes it more likely that providers will now sidestep the entire problem simply by refusing to accept some, or all, of such patients for treatment. On the other hand, it has been argued that permitting physicians to make medical decisions based on resource scarcity would compromise the fiduciary relationship between patient and physician, creating a conflict of interest because the patient’s well-being would no longer be the physician’s focus. The question is how the value judgments inherent in the development of the standard of care might evolve in response to a societal interest in controlling health care costs. It has been explained that a physician’s initial value judgment, in treating a patient, is made in light of conclusions reached about the likely benefits that services would have had for the… patient. It involves an evaluation as to whether the services should have been provided given their likely benefits, the risk of iatrogenic harm, and the gravity of the problem experienced by the patient. Normally the value judgment does not involve an explicit consideration of the costs of caring for a patient, although economics are implicitly considered. Physicians do not do everything conceivably possible in caring for a patient—they draw what they consider to be reasonable boundary lines. For example, physicians do not order every diagnostic test available for a patient that requests a physical examination, even though doing so might reveal interesting information. Instead, they order tests which are indicated given the age and physical characteristics of the patient. A physician’s initial value judgment, in other words, is constrained by reason but does not include a societal interest in conserving costs or resources, and certainly does not include weighing the physician’s own economic interests. In short, the traditional ethical norms of the medical profession and the legal demands of the customary standard of care impose significant restrictions on a physician’s ability to consider the costs of treatment, despite significant and increasing pressure to contain those costs. Whether the legal standard of care should change to alleviate that conflict, and how it might change, has been the subject of considerable discussion. It has been suggested that the customary standard of care could evolve to permit the denial of marginally beneficial treatment—in other words, when high costs would not be justified by minor expected benefits. Others have suggested that the standard of care should evolve to consider two separate components: (1) a skill component, addressing the skill with which diagnoses are made and treatment is rendered, that would not vary by a patient’s financial circumstances and (2) a resource component, addressing deliberate decisions about how much treatment to give a patient, that would vary so as to not demand more of physicians than is reasonable. It has been suggested that physicians should be permitted to rebut the presumption of a unitary standard of care when diminution of care arises by economic necessity instead of negligence. And many have suggested that custom should no longer be the benchmark for the standard of care; instead, practice standards or guidelines could be promulgated that would settle issues of resource allocation. All of the concerns discussed above are serious, and they present difficult questions that courts will be required to confront in the future. But we do not confront them here, because under the unique facts of this case, they are not presented. Contrary to the district court’s belief, this is not a case in which insurance company “bean counters” overrode the medical judgment of a patient’s physicians or in which those physicians allowed their medical judgment to be subordinated to a patient’s ability to pay for treatment. Nor is this a case in which the parties disputed the cost-effectiveness of the treatment at issue. Rather, UNMC’s evidence was that its decision to wait to begin Flolan treatment was not economic—it was a medical decision, based on the health consequences to the patient if the treatment is interrupted. …That was not meaningfully different from any number of other circumstances in which a health care provider might have to base a treatment decision upon the individual circumstances of a patient. For instance, a physician with concerns about a particular patient’s ability to follow instructions, or report for appropriate follow-up care, might treat the patient’s condition differently in the first instance. And a health care provider who is told that a patient cannot afford a particular treatment may recommend a less expensive but still effective treatment, reasoning that a treatment that is actually used is better than one that is not. These are difficult decisions, and there may be room to disagree, but it is hard to say they are unreasonable as a matter of law, or that an expert cannot testify that such considerations are consistent with the customary standard of care.”
I hope that you found this interesting as well as thought provoking. Are there any tie-ins to orthodontics? A few. The last paragraph alluded to several scenarios that orthodontists frequently encounter. Many of us have had patients who for any number of reasons do not have the mental ability or the manual dexterity to cooperate with a certain mechanotherapy. When this happens, and it has happened, we put our brains into overdrive and figure out another way to skin the cat. Maybe it is not as good as the original treatment plan, but, hey, it’s the best we could come up with under the circumstances. Does a “lesser” approach fall within the standard of care. Of course it does. It is a viable alternative that practitioners resort to when faced with treating a patient under the same or similar circumstances.
What about the patient who in the middle of treatment is off to college or becomes a foreign exchange student, or an adult who is constantly traveling for work and can only make sporadic appointments? On one hand, you can take the easy way out and politely refuse to become the orthodontist of record. On the other hand, you reach into your bag of tricks and use mechanics that might take longer, or the end result might not be “board quality,” but then, neither are the circumstances. You do the best you can.
We’ve all had patients for whom orthognathic surgery is the treatment of choice, but the insurance won’t cover it, the patient can’t pay for it, the patient won’t accept the risks, and so on. We change the treatment plan and get the best possible compromise. It happens. It’s all we can do. It is all explained to the patient up front, and he or she buys into the less-than-ideal approach, forgoes treatment, or goes to the jerk down the road who says he can make it perfect regardless. Yeah, it takes all types.
The last paragraph proposed the easy issues to deal with. It’s the troubling first part, the global picture part, the whole access to health care bit that bothers me. I hope it bothers you. We are lucky—really, really lucky. Ours is a branch of health care that is for the most part, to one degree or another, highly elective. Nobody I know of died from crooked teeth. Once you get past that and look at orthodontics from the perspective of a branch of medicine that can offer huge benefits—at least they are perceived by many to be relatively important, with small associated risks, but once in a blue moon very meaningful—it’s easy to say that everybody should take advantage of what we have to offer. Oops, damn, if I didn’t step right onto that slippery slope.
You see, what we do costs money, a lot of money. Okay, maybe not to us and maybe not to some we treat, but it certainly is a lot of money to many others out there. To many, $5000 is a fortune. What do we, as a profession, say to those who want our services, who could benefit from our services, but who can’t afford our services? Too bad? Suck it up? Life’s not fair? You can always do it later if your circumstances change? What should our professional response be?
Going back to the main portion of the court’s opinion, there are questions, issues, or concerns that we as a profession need to address or, at the very least, think about.
The court: “Today, health plans and self-insured corporations are placing increasingly stringent controls on health care resources, thereby limiting physicians’ freedom to practice medicine as they see fit.”
Orthodontics: We have started to see this in the form of noncovered services and our ability to charge fees other than what third-party payers tell us we should charge.
The court: “Clinical guidelines have proliferated from a wide variety of sources: managed-care organizations, medical subspecialty societies, malpractice insurers, entrepreneurial guideline-writing firms, and others. Each guideline purports to tell physicians the best way to practice. Yet often they conflict with each other, with traditional practice patterns, and with patients’ expectations. And many have suggested that custom should no longer be the benchmark for the standard of care; instead, practice standards or guidelines could be promulgated that would settle issues of resource allocation.”
Orthodontics: We have addressed this but only to a point. Our guidelines or parameters of care are nowhere near those associated with other “hard-science” medical disciplines. It’s my understanding that our guidelines merely describe the outer boundaries of the acceptable treatment envelope—you know, the sign that says “Do not proceed—danger, quicksand.” They don’t tell us much about the terrain on which we walk daily within those borders.
The court: “Physicians remain free, for the most part, to decline to treat those who cannot pay, and an outright refusal to treat an indigent patient, in contrast to a decision to treat in a manner inconsistent with the unitary malpractice standard, rarely creates the threat of liability. So, it has been argued that rather than assume the burden of paying for a patient’s treatment, or the potential liability of providing some but not all possible care, the unitary standard makes it more likely that providers will now sidestep the entire problem simply by refusing to accept some, or all, of such patients for treatment.”
Orthodontics: Because some Medicaid and third-party reimbursement rates are so ridiculously out of step regarding our costs, and the profit margin after deducting those costs is so miniscule, some areas of the country have essentially become orthodontic wastelands. How can this be good for society, and what if anything can be done to change the current problem?
The court: “It has been suggested that the customary standard of care could evolve to permit the denial of marginally beneficial treatment—in other words, when high costs would not be justified by minor expected benefits.”
Orthodontics: This fits orthodontics like white on rice—high price with a questionable or difficult-to-measure benefit. Don’t get me wrong. As the first American Board of Orthodontics’ third-generation orthodontist in the world—what we do is in my blood—I don’t think that any price is high enough to compensate us for making snaggleteeth look normal or marginally acceptable. But how do we measure that? It’s like art, some paintings sell for $25, and others go for millions. Who and by what criteria determines something like that?
The court: “Physicians do not do everything conceivably possible in caring for a patient—they draw what they consider to be reasonable boundary lines. For example, physicians do not order every diagnostic test available for a patient who requests a physical examination, even though doing so might reveal interesting information. Instead, they order tests that are indicated for the patient’s age and physical characteristics. A physician’s initial value judgment, in other words, is constrained by reason but does not include a societal interest in conserving costs or resources, and certainly does not include weighing the physician’s own economic interests.”
Orthodontics: We are in the midst of a pendulum swing. There is a growing uptick in all patients receiving an initial cone-beam computed tomography scan as the sole diagnostic record acquired other than the clinical examination and photos. From it, we can get our “ceph,” our “pan,” and our “models representing the occlusion,” and the “periodontal status” and look at all the other stuff we occasionally find. We either charge more for this or build it into our fees, which now must be higher than they were. In many cases, it is certainly overkill. We await the pendulum’s reverse arc—maybe.
In addition, we increasingly see patients dictating treatment in the form of “just fix the front teeth and make my smile look nice,” or “I want that nonextraction technique and those brackets I read about.” They are not worried about their occlusion, function, or lack thereof, or any other dental problems that they might have. Should we as a profession be buying into partial or limited treatment on demand?
As for our economic interests, I am not so naive as to believe that all of the phase 1 treatment going on is for the patient’s benefit. I can’t tell you how many docs have told me, in confidence, that they embark on many 2-phase treatment plans because if they don’t, they will lose the patient to a colleague or competitor down the street who will. Do high student debt and practice enhancement strategies have anything to do with ethical decision making?
Right now, orthodontics is a bit player in the health care arena relative to the overall costs associated with providing care. It doesn’t mean that we don’t face the same issues or problems; it just means that they’re not as big and thus not as subject to public scrutiny. It also doesn’t mean that we shouldn’t put our best minds to work, looking at some of these issues, and substantively addressing them when and where we can. We owe it to ourselves, our patients, and the society under whose umbrella and constraints we are or will be accountable to.
One of my mentors once told me that ignorance is the equivalent of winning the lottery. When nothing bothers you, you have nothing to be concerned about. There’s a lot out there that we can’t change, but we owe it to ourselves and those we serve to at least think about things that we might be able to change. We are, after all, orthodontists, not ostriches.