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If insurers could not retrospectively deny reimbursement, the public would suffer in the end. No insurer could sustain uncontrolled expenditures, and if they are forbidden to control them by denying payment, they would need to contain costs by limiting patients' choices of physicians. Ultimately public policy therefore favors upholding insurers' rights to refuse to cover certain medical services. Sarchett v. Blue Shield of California 729 P. 2d 267, 274 (Cal. 1987); Lockshin v. Blue Cross of Northeast Ohio, 434 N.E. 2d 754 (Ohio App. 1980); Varol v. Blue Cross and Blue Shield 708 F. Supp. 826 (E. Dist. Mich. 1989). But see Van Vactor v. Blue Cross Ass'n 365 N.E. 2d 638 (Ill. 1977).Google Scholar

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Public hospitals are increasingly strained to care for burgeoning numbers of indigent patients who are no longer accepted at public hospitals. See Hadley, J., Steinberg, E.P. and Feder, J., “Comparison of Uninsured and Privately Insured Hospital Patients: Condition on Admission, Resource Use, and Outcome,” Journal of the American Medical Association 1991; 265: 374–379; Bindman, A.B., Keane, D. and Lurie, N. “A Public Hospital Closes: Impact on Patients' Access to Health Care and Health Status,” Journal of the American Medical Association 1990; 264: 2899–2904.Google Scholar

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Throughout this discussion I am presuming that negligence suits against insurers are not in fact preempted by the Employee Retirement Income Security Act (ERISA) of 1982, which regulates employee pension and welfare-benefits plans. By preempting state laws on legal issues that involve employee benefits, ERISA generally limits beneficiaries of ERISA plans to federal remedies, which would allow recovery for the benefits that should have been awarded, plus some attorneys' fees. Federal remedies do not ordinarily allow punitive damages, lost wages, pain and suffering, and the like. The question whether ERISA truly precludes negligence suits from being brought under state laws has yet to be definitively resolved and, in any event, ERISA does not apply to privately purchased plans or to employer self-insurance plans. Thus, at least some suits can be brought against some insurers where their UR policies have allegedly caused adverse patient outcomes. See Hirshfeld, E.B., “Tort Considerations for Third Party Payors”, IN: Johnson, K.B., Hirshfeld, E.B., Ile, M.L., Kelly, J.T., Bierig, J.R., Raskin, R.D. and Fleisher, L.D., eds. Legal Implications of Practice Parameters. Chicago: American Medical Association, 1990: Pp. 55–90, at 70–72; Thomas, M.C., “Who'll Be Liable When a Patient is Injured?” Medical Economics 1991; 68(8): 57-62, at 57-58; Blum, supra note 16, at 200-215; Helvestine, supra note 9, at 187–88; DiPaola, T.A.. Wrongful Denial of Health Insurance Benefits. 26 Trial 74–81 (1990); Fox, D.M. and Schaffer, D.C., “Health Policy and ERISA: Interest Groups and Semiprcemption,” Journal of Health Politics, Policy and Law 1989; 14:239-260; Brown v. Blue Cross & Blue Shield of Alabama, 898 F. 2d 1556 (11th Cir. 1990).Google Scholar

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The action is not voluntary because the person “is in a predicament which limits his area of choice by rendering one alternative less eligible.” Hart and Honoré, supra note 28, at 157.Google Scholar

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In Wilson v. Blue Cross, for example, The plaintiff alleged that Western Medical, an independent utilization reviewer, induced his insurer to break its contract with the patient; Wilson, at 881. We will examine the Wilson case in detail, below.Google Scholar

As noted by one commentator, “the issue in tort law is not, whether the original tortfeasor had the principle or sole responsibility for the ‘victim's welfare,’ but only what was the scope of the foreseeable risk created by the original tortious act. Therefore, this economic pressure on the treating physician is sufficient proximate cause to give rise to liability on the part of the insurers.” Smith, supra note 21, at 203.Google Scholar

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Wilson, at 883. It may be useful to point out some complexities in the Wilson case. In large measure, the case was a matter of contract, rather than tort, A central question was whether the patient's policy permitted utilization review to be applied, or whether it was set up simply to pay for whatever care the treating physician deemed to be medically necessary. Interestingly, in a footnote, the court acknowledged that there was some evidence to believe that the patient's policy actually did permit UR. However, because this argument was not presented at the trial level, it could not be introduced for the first time on appeal (at 884). Further, the court offers somewhat confusing bases on which to distinguish the Wilson from the Wickline case. In Wickline, the court said, the state's UR process was not pursuant to a private contract, but rather was the product of the legislation creating Medi-Cal. Ordinarily parties are to be responsible for the injuries they cause, but this usual standard of tort can be suspended by the state for good reasons of public policy. By statute, Medi-Cal was permitted to use UR as a basis on which to deny benefits, so long as care comports with the “usual standards of medical practice in the community” (at 879–80). Therefore, the court concluded, Medi-Cal was not governed by traditional tort standard. Unfortunately, the court's discussion is a bit perplexing here, because in medical malpractice litigation, the tort standard of care just is the “usual standards of medical practice in the community.” In this sense, we might say that the state did not exempt itself from tort standards, but wrote them into its own UR provisions. Therefore, it is unclear in just what sense the Wilson court believes that Medi-Cal utilization review is somehow exempt from the usual tort standards.Google Scholar

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Prosser, supra note 27, at 267. Similarly, Keeton points out that: “Factual causation refers to the requirement that the act and the injury be related. Legal causation refers to the requirement that the act and the injury be reasonably related.” See Keeton, W.P., “Causation,” 28 So. Texas Law Review 1986; 28: 231–240, at 232. See also: King, J.H. Jr., “Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences,” The Yale Law Journal 1981; 90:1353-1397, at 1353–55.Google Scholar

See Brennan, supra note 48, at 491. We should at least note that there are some legal scholars who deemphasize the role of fault in tort litigation. For the so-called “economic analysts”, the purpose of tort law is to maximise wealth and minimize social costs. Legal “blameworthiness”, with its underlying tone of moral blameworthiness, plays little or no role on this view. Rather, we look for which risks are worth avoiding, and which party can most easily and cheaply avoid them. Under such an approach, one's notion of causality is also modified from more traditional concepts. See, e.g., Wright, R.W., “Actual Causation vs. Probabilistic Linkage: The Bane of Economic Analysis,” Journal of Legal Studies 1985; 14: 435–56.CrossRefGoogle Scholar

Keeton, supra note 51, at 232. The most notable exception to the requirement of fault is strict liability, which operates independently of fault. A corporation can be liable for a defective product, no matter how careful or blameless its conduct. Vicarious liability similarly operates with little requirement of fault, although when, for example, an employee has behaved carelessly, we might find some fault in the way that the employer selected or supervised him. In the main, however, tort litigation is based on the notion that the costs of injuries should be levied on those who did wrong.Google Scholar

In Commonwealth v. Hall, 78 N.E.2d 644 (Mass. 1948), a mother placed her illegitimate daughter in the attic to die of starvation and dehydration. According to the Massachusetts Supreme Court, “‘if death is the direct consequence of the malicious omission of the performance of a duty (as of a mother to nourish her infant child) this is a case of murder. If the omission was not malicious and arose from negligence only, it is a case of manslaughter’ … By the law of this Commonwealth the defendant was under a duty to provide for the support and maintenance of her child notwithstanding its illegitimacy” (at 647). The court further circumscribed causal responsibility on the basis of who had the greatest duty. “The primary duty is on the mother, and she is relieved of that duty only to the extent that aid can be obtained from the father” (at 648) Ultimately, the mother was found guilty of second degree murder, while the father was not even tried. Thus, only the one who antecedently had the duty was the cause of the death. See also Lewis v. State of Georgia, 72 Ga. 164 (1883); People v. McDonald, I N.Y.S. 703 (1888). See also Justice Scalia's discussion of this point in Cruzan v Director, Missouri Dept. of Health, 110 S.C. 2841 (1990), at 2861.Google Scholar

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It would not be his duty to provide antibiotics if the patient had requested that he use no life-prolonging treatments. Further, one can argue that the physician has no legal or moral duty to provide treatments that are futile. See Brett, A.S. and McCullough, L.B., “When Patients Request Specific Interventions,” The New England Journal of Medicine 1986; 315: 1347–1351; Meisel, A., “Legal Myths About Terminating Life Support,” Archines of Internal Medicine 1991; 151: 1497-1502.Google Scholar

In these two cases we might, morally, be inclined to suppose that those who knew of the patient's or child's plight could and should have helped, and that therefore they were at least partly the cause of his death. And yet, if we were to ascribe causality in this way, we could only do so by adopting the view of causality offered here. We would be arguing that because these other people also had a (moral) duty, they therefore also bear causal responsibility. It is because we do not wish to hold such a moral obligation as a binding legal duty that we would not then take the further step of holding the neighbors or other physicians legally the cause of the death.Google Scholar

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We also might consider other policy matters, such as the proximity between the act and the consequence, the foreseeability of the harm, public policies for preventing harm, the costs of imposing a duty, and the like. See Wickline, at 670.Google Scholar

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Prosser, supra note 27, at 273. This view is echoed in Judge Andrews' dissent in Palsgraf v. Long Island R. Co. (162 N.E. 99 (N.Y. 1928)). Any event has many causes, and each is essential in that without each, the events that followed would not have been the same. Proximate causation, however, takes us beyond these natural consequences of an event. “What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics” (at 103).Google Scholar

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Some studies specifically look the ways in which UR operations assemble their substantive review criteria. One such investigation compared the criteria that are used by various Peer Review Organizations (PROs), established by Congress to assess the quality and appropriateness of medical care funded by Medicare. For the three procedures studied—carotid endarterectomy, cataract removal, and cardiac pacemaker implants—the investigators determined that PROs differed widely from each other, and from guidelines promulgated by medical subspecialty groups. See Kellie, S.E. and Kelly, J.T., “Medicare Peer Review Organization Preprocedure Review Criteria: An Analysis of Criteria for Three Procedures,” Journal of the American Medical Association 1991; 265:1265–1270.Google Scholar

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Maryland and Arkansas, for example, mandate that UR agencies be certified. Certification requires that the UR agency submit information concerning its procedures, staffing level and qualifications, appeal mechanisms, and the like. Maryland also requires that UR firms stay open 24 hours a day, in order to respond to requests for authorization. Minnesota requires that preauthorization decisions be rendered within ten business days. The Louisiana statute provides that review should be conducted “in accordance with nationally accepted medical criteria,” and requires that UR be timely, preferably within two days. See Md. Code Ann. § 19–1301 et seq.; Minn. Stat. Ann. § 72 A 20 (4a); La. Stat. Ann. R.S. 22:657D; Helvestine, supra note 9, at 186–87; Winslow, R., “Effort to Curb Health Costs is Hitting Snags,” Wall Street Journal 8/8/91, B-1, B-4.Google Scholar

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The physician is, of course, obligated to inform the patient carefully regarding the consequences of refusing a recommended intervention. See Truman v. Thomas, 611 P.2d 902 (Cal. 1980). Where patients have been properly informed, courts regard their refusals to follow medical advice as reason to hold them causally and legally responsible for any problems of their own making. See Sorina v. Armstrong, 554 N.E.2d 943 (Ohio App. 1988).Google Scholar

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In the Wickline case, for example, the physicians were not asking for further hospitalization, they were asking for more money. If they had kept Mrs. Wickline in the hospital for another four days, she probably would not have received an enormous hospital bill. Or if she had, quite likely she would not have had to pay it. She was, after all, medically indigent, as certified by her eligibility for Medicaid insurance. Hospitals are often reluctant to spend time and money pursuing collections that are known from the start to be poor prospects. Much more likely, the hospital would simply have incurred yet another sum of uncompensated care. That consequence is not insignificant, of course, because hospitals must shepherd their resources very carefully. Still, while it would be foolish to ignore the serious problem of hospitals' rising rates of uncompensated care, nevertheless in individual cases one can often devise a way for the patient to receive what he or she needs.Google Scholar

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