Managed care liability and the capitated provider

While there have been no reported cases as yet on the subject of ERISA preemption of claims arising from utilization review decisions by providers, it will unquestionably be a significant issue facing providers that participate in capitated arrangements. If preemption is determined not to be available, providers will be exposed to risks from which health plans are currently shielded. Providers conducting utilization review should be following this issue as it develops, but should also be obtaining insurance for this risk to the extent it is available (e.g., it will not be available for punitive damages). Providers should also consider negotiating provisions in their contracts with health plans to the effect that any utilization review conducted by the provider is on behalf of the health plan and that the provider's utilization review activities will be covered under the health plan's liability insurance.     

Palliative pain therapy at the end of life and forensic medicine issues.

An 83-year-old woman with a history of Alzheimer's disease and breast cancer died at home while receiving palliative pain therapy with oral morphine from her family for metastatic breast cancer. Allegations of mistreatment were made, and this case was ultimately referred to the Office of the Chief Medical Examiner, State of Maryland. An autopsy failed to identify any injuries or residual cancer, leaving no anatomic explanation for the pain that had been presumed to be metastatic breast carcinoma involving bone. The blood free morphine concentration was 5,200 ng/ml, and the total morphine concentration was 15,000 ng/ml. This case demonstrates the challenges and difficulties in forensic medicine when faced with the interpretation of toxicologic results at the end of life.