Health insurer made her wait for MRI as cancer that killed her spread

"If you had come to us a month sooner, we would have treated you with just chemotherapy. We'll still use chemo, but first we have to amputate your leg, your hip and your pelvis."

Kathleen Valentini, 47, and her husband, Val, listened to the Memorial Sloan Kettering Cancer Center doctor's message in disbelief. She hadn't delayed seeking treatment by even a day. When the pain in her leg had first appeared six months earlier, she immediately went to her doctor.

"She was always the responsible one," Val said.

But their health insurance company had denied a specialist's request for an MRI, a basic diagnostic test. The insurance company told her doctor that it wasn't medically necessary, and that Kathleen first had to complete six weeks of physical therapy. The doctor pointed out that not only had Kathleen already completed the therapy, but that the insurance company had paid for it.

Nevertheless, the insurance company still denied the MRI. Her doctor immediately appealed. The insurer took 38 days to reverse its denial, and Kathleen got her MRI, which revealed a fast-growing sarcoma in her hip. Surgeons performed the amputations and began chemotherapy, but Kathleen died two years later.

Prior authorization can harm patients

Such delays in care are not unusual. Insurance companies control access to tests and procedures through a process known as prior authorization. Doctors say PA delays causes significant harm to patients.

The American Medical Association found that more than 90% of doctors say PA causes delays in treatment. More troubling, a third of physicians report that PA delays have resulted in a serious adverse event for a patient in their care; 24% report that PA delays have resulted in a patient's hospitalization.

More worrisome still, 18% say PA has led to a life-threatening event or one that required intervention to prevent permanent impairment or damage. And nearly 1 out of 10 doctors report that prior authorization "reviews" have led to a patient's permanent bodily damage, disability or death.

The AMA reports that 84% of physicians report that the number of PAs required for prescriptions and medical services has increased in the past five years. And a study by the Inspector General of the U.S. Department of Health and Human Services found that 73% of appealed denials for medications were overturned.

Of the remaining denials, the insurance company wasn't "right"; many doctors simply didn't have the time or resources to challenge the insurance companies' bureaucracies. As a result, countless appeals are abandoned, and patients go untreated.

While insurance companies require PA for a wide variety of basic tests and procedures, they often don't tell prospective policyholders until it is too late. Recently, it was found that Kathleen's insurance company required PAs for 87 categories of procedures but told policy holders about only seven.

At first glance, insurance companies might seem to have legitimate concerns for auditing physicians' prescriptions. Many doctors admit to authorizing what may be unnecessary tests. They do it both to ensure that they don't miss something and to defend against liability – doctors don't want to get sued if something goes wrong.

True, more than a few doctors, hospitals and clinics abuse the system for personal gain. The Centers for Medicare and Medicaid Services estimated that in 2020 about $43billion in Medicare payments and more $86billion in Medicaid payments were improper. Some payments were outright fraud; others were simply errors.

Few dispute the need to fight fraud and wasteful spending. But the government's approach to prior authorizations makes more sense than private insurers' delays and denials. Medicare puts patients first. There are no prior authorization hurdles (except for motorized wheelchairs and hospital beds for the home). Instead, Medicare does robust auditing of doctors – after patients have been treated – and then goes after doctors who abuse the system.

Did the delay in diagnosing and treating Kathleen's cancer contribute to her pain, suffering and untimely death? We may never know, because there is no law that holds an insurance company accountable when it practices medicine and then makes an error. Unlike doctors, hospitals, dentists and podiatrists, there is no law prohibiting medical malpractice by insurers or the contractors they hire to do "utilization reviews."

Legislative fixes are needed

The judge hearing Kathleen's lawsuit against her insurance company and its utilization review contractor – alleging they were negligent in failing to review their own records (much less Kathleen's) and in delaying her MRI – said this case was tragic. But he also said he was not about to make new law. That, he said, was the legislature's responsibility.

Kathleen's family is appealing the judge's ruling, arguing that case law – if not statute – holds the insurance company and its agent liable when they commit medical malpractice. But the judge was quite right about the need for Congress or state legislatures to address the problem of accountability.

As insurance companies become increasingly aggressive in their use of prior authorization – whether to boost the bottom line or to control improper spending – they need to be held to the same standards of good-and-appropriate medical practice as doctors. It shouldn't require a triple amputation to spur our political representatives to take responsibility for their oversight.

Steve Cohen is an attorney at Pollock Cohen LLP, which represents Kathleen's family.