This Article  • References  • Full text PDF  • Send to a friend  • Save in My Folder  • Save to citation manager  • Permissions  Citing Articles  • Citation map  • Citing articles on HighWire  • Contact me when this article is cited  Related Content  • Similar articles in JAMA  Social Bookmarking   What's this?

Circumventing Technology Assessment

John H. Ferguson, MD; Michael Dubinsky, PhD; Peter J. Kirsch, JD

JAMA. 1993;269(16):2116-2121.

Abstract
Objective.
—Because we found examples where courts of law ruled against insurance carriers that had been sued for reimbursement for unproven medical procedures, we conducted a case study to determine the reasoning behind these decisions that run counter to accepted medical science. Such actions circumvent health technology assessment and could contribute to escalating health care costs and poorer quality health care.

Data Sources.
—A literature search identified 17 cases between 1980 and 1989 in which an insurance company was sued to reimburse a patient who had received an unproven or questionable health technology; 14 of these suits were decided in favor of the plaintiff, and the insurance company was ordered to pay. Discussed in this article are six of these cases, two involving Laetrile (amygdalin), two involving immunoaugmentative therapy, and two involving thermography, technologies that had previously been assessed as not safe, not effective, or inadequately evaluated.

Data Synthesis and Conclusions.
—The circumstances determining how the courts arrive at these "unscientific" decisions fall into three general categories: (1) for legal reasons, the insurance contract is interpreted in favor of the insured; (2) the reluctance and/or inability, legal or otherwise, of the courts to use published scientific literature; and (3) the use of adversarial "expert" witnesses with potential conflicts of interest. To address this situation, we first urge the legal and insurance industries to cooperate in improving the contract language and process in a way that would be both legally and scientifically appropriate. Second, we encourage the courts to use and foster the use of published peer-reviewed scientific material as evidence whenever possible. Third, we recommend that the courts choose their own unbiased expert witnesses to interpret scientific material.

(JAMA. 1993;269:2116-2121)

Author Affiliations
From the Office of Medical Application of Research, National Institutes of Health, Bethesda, Md (Dr Ferguson), the Administration for Children and Families (Dr Dubinsky), and Cutler & Stanfield (Mr Kirsch), Washington, DC.

Footnotes
Reprint requests to Office of Medical Application of Research, National Institutes of Health, Federal Bldg, Rm 618, Bethesda, MD 20892 (Dr Ferguson).

CiteULike    Connotea    Del.icio.us    Digg    Reddit    Technorati    Twitter     What's this?

THIS ARTICLE HAS BEEN CITED BY OTHER ARTICLES

The Role of the Courts in Shaping Health Policy: An Empirical Analysis
Jacobson et al.
J Law Med Ethics 2001;29:278-289.
 

Cost-Effectiveness Analysis in the Courts: Recent Trends and Future Prospects
Jacobson and Kanna
Journal of Health Politics, Policy and Law 2001;26:291-326.
ABSTRACT  

From the Clinics to the Courts: The Role Evidence Should Play in Litigating Medical Care
Morreim
Journal of Health Politics, Policy and Law 2001;26:409-428.
 

Quality of Life: Erosions and Opportunities Under Managed Care
Morreim
J Law Med Ethics 2000;28:144-158.
 

When Should Preventive Treatment Be Paid for by Health Insurance?
Annas
NEJM 1994;331:1027-1030.
FULL TEXT  

I Had a Tough Day Today, Hillary
Boren
NEJM 1994;330:500-502.
FULL TEXT  

Reimbursement for Unproven Therapies: The Case of Thermography
LaBorde
JAMA 1993;270:2558-2558.
ABSTRACT