Anthony Sebok has written an interesting column for Writ looking at a recent decision making an HMO equally liable for coverage decisions as a doctor would be for therapy decisions. It’s a big finding, because in the past, HMOs have shielded themselves from malpractice claims by stating that coverage decisions aren’t the same as active medical care; as such, they aren’t stopping someone from getting specific care, but rather, just saying that their insurance won’t pay for that care. In Cicio v. Vytra Healthcare, however, the Second Circuit disagreed with this, holding that there are times when a coverage decision is indistinguishable from the choice and implementation of a specific treatment — in effect, coverage determines treatment. And while the decision isn’t perfectly generalizable, Cicio seems to potentially open up the door for further HMO liability when care is denied based solely on cost. It’s an acknowledgement that medical care has changed a lot since malpractice law was drafted. In the words of Sebok:

It may be time for the foundations of medical malpractice to shift. Once, this area of law was based on the special relationship between doctor and patient. Now perhaps it should be based on the fraught economic relationship between the patient, the doctor, and the insurance company.