By Breck Hopkins, JD

Performance of health care utilization management (UM) reviews does not put you at risk of malpractice liability. Here’s why:

1. No Injury:
As an AFMC reviewer, you may perform UM reviews for various customers including Medicaid, private insurance and self-insured entities. Your UM decisions control whether the customer pays, not whether the patient is treated,[1]which is a matter between the patient and the patient’s health care provider. It is, therefore, difficult, if not impossible, to trace any medical injury to a utilization review. That is especially true of retrospective review decisions, because the services have been delivered and the beneficiaries are not liable for payment.[2]

Moreover, Medicaid providers, beneficiaries, or both, may appeal adverse UM decisions. Failure to appeal is generally deemed to be acquiescence in the decision. If the beneficiary appeals and wins, then your decision caused no harm. If the beneficiary appeals and loses, then your decision was correct and cannot be attacked in a different proceeding.

2. No Medical Injury or Malpractice as defined by Arkansas law:
Arkansas law defines “Action for medical injury” (malpractice action) as “all actions against a medical care provider… to recover damages … on account of medical injury.”  Ark. Code Ann. § 16-114-201 (1) (emphasis added).

A “medical care provider” is:

a physician, certified registered nurse anesthetist, physician’s assistant, nurse, optometrist, chiropractor, physical therapist, dentist, podiatrist, pharmacist, veterinarian, hospital, nursing home, community mental health center, psychologist, clinic, or not-for-profit home healthcare agency licensed by the state or otherwise lawfully providing professional medical care or services, or an officer, employee or agent thereof acting in the course and scope of employment in the providing of such medical care or medical services.

Ark. Code Ann. § 16-114-201(2) (emphasis added).

A “medical injury” is an adverse consequence:

arising out of or sustained in the course of the professional services being rendered by a medical care provider to a patient or resident, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Ark. Code Ann. 16-114-201(3) (emphasis added).

In short, malpractice occurs only when a patient suffers a medical injury at the hands of someone who provided medical care or medical services. Payment issues are not within the scope of malpractice claims. And, because UM decisions are not medical care or services, UM reviewers are not acting as medical providers and, by definition, cannot cause medical injury.

3. Nonpayment claims are brought against the payer, not the payer’s agents or employees:

Unlike malpractice cases, which target individuals, payment disputes arising from UM decisions are brought against payers such as Medicaid and insurance companies.

4. Unless you consent, your name will not appear on the UM decision:

AFMC is a federally designated QIO-Like entity[3], and therefore keeps your name confidential unless you authorize disclosure.[4]  This privacy is a substantial safeguard against any lawsuit or claim.

Conclusion: The prospect of liability for UM reviewers is remote. Even if medical injury claims could be brought under general negligence principles – and not subject to the limitations discussed above – there is no straight line from injury to award. Plaintiffs must prove negligence by a preponderance of the evidence.

Frivolous lawsuits are of course possible. AFMC maintains liability insurance for its UM activities. AFMC’s insurer provides the defense lawyer and covers damages up to the policy limit.

Mr. Hopkins is AFMC’s general counsel.

[1]Payment denial based on UM determination was not a treatment denial.  Ratliffe v. Russell, 2018 U.S. Dist. LEXIS 48929 (W.D.Va. March 26, 2018).

[2]Bland v. Selig, 2008 U.S. Dist. LEXIS 55542 (E.D.Ar. July 21, 2008).

[3]A “QIO-Like entity is certified by the Centers for Medicare and Medicaid services as meeting and functioning in accordance with the requirements for a Quality Improvement Organization (QIO).

[4]A Quality Improvement Organization “may disclose to any person, agency, or organization information on a particular practitioner or reviewer at the written request of or with the written consent of that practitioneror reviewer.”  42 C.F.R. § 480.133(a)(2)(iii) (emphasis added); Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Servs., 444 F3d 991, 995 (8thCir. 2006).