A 1993 JAMA paper by John Furguson, Michael Dubinsky, and Peter Kirsch is a nice complement to my prior post on the challenges that private insurers would (and do) have in making coverage decisions based on comparative effectiveness research (CER).
Among the numerous reasons for assessing health care technology is the need to provide scientifically reliable information for health care providers and third-party payers so they can make the reasoned decisions necessary for proper health care and cost control.
The courts often play a pivotal role in assessing new health care technology. We became aware of several cases in which patients successfully recovered incourt from third-party payers for failure to reimburse for various medical procedures or treatments, some of which were widely agreed to be medically unsafe or ineffective. We postulated that the courts—as unscientific arbiters of medical technology—could inadvertently become the true assessors of new technology, and that insurers might reimburse medical claims hastily, without adequate assessments, in order to avoid litigation. One would hope that the judicial system (including attorneys, judges, and jurors), increasingly exposed to issues involving medical science and technology, would rely on scientifically valid, balanced, and unbiased assessments. To the contrary, we found that the judicial system seldom uses, and may avoid, published medical science. […]
Furthermore, common law interpretations of contracts, which historically have been intended to protect consumers from overreaching by insurance companies, often leave courts little choice but to hold in favor of the insured, even when competent medical evidence demonstrates that the technology in question is either unsafe or ineffective. Court judgments that order reimbursement for unproven technologies potentially spread their use, since reimbursement is known to encourage the use of a new technology, as was demonstrated for magnetic resonance imaging. If abused, these traditional doctrines, which the legal system relies on, would effectively undercut or bypass medical technology assessments, resulting in not only a more expensive health care system, but also one that does not properly respond to changes in medical science.
Is anyone aware of a more recent paper that covers similar territory? If the legal landscape hasn’t changed, how are private insurers ever to make CER-based coverage decisions without risk of litigation, unless, of course, Medicare provides the cover?