Is Care Delayed Tantamount to Care Denied?

Justice delayed is justice denied, as the saying goes. By the same token, does it not hold that treatment delayed is treatment denied? And thus are not risks increased, treatment outcomes compromised, sufferings magnified?

Call me Ishmael. My partners and I operate a large psychiatric practice on the outskirts of a mid-sized Northeastern city. Our patient population comprises a representative spectrum of the local community, from early adolescents on up. Within our specialty, we are the face of American healthcare. Among the many machinations concocted by the managed care entities through the years, we suspect that a new one has recently been given birth. It might well be dubbed “managed delays.”

In the good old days of insurance company SOP, especially among the for-profits, this would have referred to the scheme of requiring “doctors or doctor representatives” to call a deliberately understaffed toll-free number and proceed through a three-or-more step process (including built-in hold times, needless recitations of patient demographic information, a rotating menu of inane questions posed in robotic tones by first-name-only drones hunkered down in underground cubicles at the opposite end of the continent) to obtain “prior authorization” for anything other than generic Motrin. Recently, however, we have seen evidence of a new and more pernicious form of obstructionism: Properly formatted and completed prior authorizations requests simply go unanswered for as long as THREE WEEKS after they are faxed to the insurance entity. Duplicate requests go unheeded. Follow-up phone calls – if we can actually determine which call center to contact - do not accelerate the response. Generics receive no better response than brand-name drugs. We are forced to conceive of a system whereby only those facsimiles which have thoroughly yellowed at the bottom of the “in” box on the desk of the one remaining employee in the PA department are answered. More than ever, the profit motive seems alive and well.

We suspect that this variant form of industry unconscionableness is so new that the plaintiff’s bar has not yet had time to mine it for a potentially lucrative strike. Indeed, a recent search of the LexisNexis database using the keywords “prior authorization” and “delays” failed to find any evidence of relevant case law at the appellate or state supreme court level. Nonetheless, the number of injuries that might be suffered as a consequence of such delays is likely to be substantial, not only within the province of psychiatry, but across the landscape of medicine. That they would, in turn, be actionable is predicted, among other sources, by the American Bar Association Family Legal Guide (viz. http://public.findlaw.com/abaflg/flg-17-2a-9.htm), which states that “…consumers can sue an MCO [managed care organization] for injuries resulting from the company’s refusal to authorize medically necessary treatment.” The defense, in such an instance, would doubtlessly argue that authorization was not refused – simply delayed. To this we would suggest the following syllogistic rebuttal: If a delay is a denial, and a denial is a refusal, then a delay is a refusal. And even if it is not, the MCO’s would have to conjure up the ghost of Clarence Darrrow to convince a jury that turnaround times counted in WEEKS do not violate the relevant standard of care. Stir a little evidence of willfulness (i.e. internal memoranda confirming intentionality) into this negligent stock and you have a witch’s brew toxic enough to give even the most cynical corporate counsel dyspepsia. We hope that their adversaries on the personal injury side are paying close attention, and that the tally of preventable suicides, strokes, and adverse consequences can be kept to a minimum until the scales swing once again into some semblance of balance.