Scott O’Halloran, JD, an attorney in the Tacoma, WA, office of Williams Kastner, has handled several malpractice cases involving patients who couldn’t pay for care. Plaintiff attorneys have argued that a physician should be held liable for failing to prescribe a less expensive medication and also for failing to appeal an insurance company’s denial of a diagnostic test.
Here are some common factors in these claims:
• Patients are unable to pay for medications prescribed by the physician.
In one case, a cardiologist prescribed an important heart medication. "It was expensive, and the patient only took it sporadically due to cost," says O’Halloran. "The cardiologist was criticized for failing to provide free samples to the patient."
In another case, a patient suffered from very high tryglicerides and high LDL cholesterol, and the patient needed a combination drug therapy including a fibrate and a statin. "Unfortunately, the only generic statin available on the market at the time was simvastatin which, when combined with a fibrate, was known to increase the risk of acute renal failure in some cases," says O’Halloran. The patient could afford only the generic statin and ended up developing acute renal failure.
"The physician was criticized for failing to prescribe a more expensive alternative to simvistatin," says O’Halloran. The case resulted in a verdict for the plaintiff.
"An attempt to obtain approval for the more expensive drug and documentation regarding the relative risk and increased monitoring may have made the claim more defensible," O’Halloran says.
• Imaging was ordered, but the patient failed to have it done because he or she could not or would not pay for it.
In a recent malpractice case, plaintiff attorneys made an issue of the fact that the patient’s insurance company refused to pay for a patient’s MRI because they thought it was not indicated. "In that case, a brain tumor would have been diagnosed in its early stages, had the MRI been done," says O’Halloran.
There was a defense verdict, but the primary care physician was criticized for failing to appeal the insurance company’s denial. "Standard of care probably does not require a physician to appeal a denial, but some experts may disagree," says O’Halloran.
Some physician practices employ an assistant to advocate for low-income clients to ensure they get the medication and tests they need, he notes.
• The patient fails to follow up as directed to avoid the cost.
Paramedics urged a woman with transient heart pain to go to the ED, but the patient refused to do so because she was worried about the cost. "The woman did not want an ER bill, and she delayed going until it was too late," says O’Halloran.
Nevertheless, when she did finally come to the ED and had a bad outcome, the ED staff was criticized for not getting the patient diagnosed and into the cardiac catheterization lab for angioplasty sooner, says O’Halloran, noting that the case was settled.
"A patient’s failure to come sooner may reduce the risk of a plaintiff verdict," he acknowledges. "But it won’t eliminate it, because the clock starts ticking when the patient reaches the door, and time is muscle.’"