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Can insurance rules create malpractice suits?

A few years ago, Angelina Joie gave a face to genetic testing. Jolie lost her mother to breast and ovarian cancer, and as a result, she decided to be tested for the BCRA gene--better known as the breast cancer gene. Women who test positive for the gene have an extremely high risk of developing one or both cancers. Upon learning she was a carrier, Ms. Jolie opted for both a prophylactic mastectomy and hysterectomy.

Finances over Physicians?

Ms. Jolie is no doubt financially capable of having these tests done without getting a physician's referral. But many women rely on health insurance that has built-in referral systems in order to get care--without a proper referral, a woman could be left financially responsible for the test and the treatment. Recently, insurance companies went from allowing physician test referral to requiring patients to first see a genetic counselor, who would then refer them for the test.

Is this a proper standard of care?

Historically genetic counselors have always had long wait times--from months and, sometimes, up to a year. Couple that with the visibility Ms. Jolie brought to BCRA testing and wait times are now the longest they have ever been. If a patient wait time for an appointment is incredibly long, she may decide to forego the test or even forget the test--it is very easy to miss an appointment scheduled so far in advance.

Are physicians going to be held liable?

If physicians can no longer refer a patient for a test they believe she needs, does that affect the standard of care provided and if so, will the physician be liable if the delay causes the woman's health to decline or results in a failed diagnosis? Are insurer's leaving doctor's holding the bag? These are questions that will no doubt only be answered with litigation once someone brings a suit alleging one or both.

If you are a physician facing this dilemma, talking with a medical malpractice attorney may help you. An attorney can help you be proactive in documentation and give you the best chance at prevailing should a suit arise.

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