AzMedicine publishes “Can Your Disability Insurer Dictate the Terms of Your Care?” article by Ed Comitz and Michael Vincent

Disability insurance attorney Edward O. Comitz and Michael Vincent, Summer Associate at Comitz | Beethe, had their article Can Your Disability Insurer Dictate the Terms of Your Care? published in the Winter edition of AzMedicine, the publication of the Arizona Medical Association.  The article is excerpted below.

Can Your Disability Insurer Dictate the Terms of Your Care?

By Edward O. Comitz, Esq. and Michael Vincent

           Imagine that you are a surgeon who has submitted a disability insurance claim after failed cataract surgery left you with halos, starbursts, and even temporary blindness under bright lighting. While you are dedicated to your profession, you realize that continuing to operate on patients puts them in danger.  Your disability insurance company, however, will not pay your claim.  It insists that you can keep performing surgeries, alleviating any occupational hazards by wearing sunglasses and using matte-finish instruments in the operating room.  This scenario may sound absurd, but it is an actual example of some of the difficulties faced by many doctors seeking legitimate policy benefits.  Fortunately, the surgeon in question had the common sense to cease performing surgeries rather than follow her insurer’s suggestions.  Her decision did affect her financially, as benefits were denied for almost two years, and only paid after litigation ensued.

Insurance company treatment mandates are commonplace and based on their interpretation of the terms of your policy.  In some cases, the insurance company goes so far as to demand surgery, invading your privacy and leaving you with the choice of either undergoing an operation involuntarily, bearing all of the medical risks and financial costs yourself, or waiving your right to collect disability insurance benefits.  The decision can be difficult, but understanding your rights and obligations beforehand can help alleviate much of the worry.

Whether or not insurers can legally condition payment of your disability insurance benefits upon you following their suggested treatments depends on the specific terms in your policy.  The various policy types fall into three general categories: “regular care” policies, “appropriate care” policies, and “most appropriate care” policies.

The oldest policies typically contain provisions conditioning benefits on being “under the regular care and attendance of a physician.”  These “regular care” policies provide the most protection for insureds, as courts have repeatedly found that these provisions only create a duty for the insured to undergo regular monitoring by a physician to determine if the disability persists.  Even if a proposed surgery is usually successful and very low risk, an insurance company cannot force it upon you.  Under a policy requiring only regular care, courts will not enforce any particular course of treatment, no matter how vehemently an insurance company objects.

The “appropriate care” policies used in more recent years are less straightforward.  These policies purport to simply require “regular care,” but elsewhere in the policy “regular care” is redefined to require that the insured receive medical care “which is appropriate for the condition causing the disability.”  During the initial stages of the claim process, you may butt heads with your insurer as to whether your medical care is appropriate, even if your treating physician finds that it is.  Perhaps you opted for conservative treatment and are experiencing some relief, or perhaps a particular surgery involves risks unique to your medical history.  For whatever reason, many policyholders are uncomfortable with their insurance company’s treatment recommendations.  In one case, a dentist developed a shoulder injury which left her in pain and unable to practice.  Her insurer demanded surgery, a moderately risky solution but one that could potentially restore the shoulder to occupational usefulness.  The dentist, on the other hand, had a family history of unusual complications due to anesthesia.  For her, “simple” shoulder surgery could prove fatal.  Needless to say, she wasn’t comfortable with undergoing surgery and opted for physical therapy instead.  Her insurer’s continued demands, however, forced her to hire an attorney to protect her right to select her own medical care.

There may be several possible courses of treatment for some medical conditions, so it can be difficult to know when a particular course of treatment is considered “appropriate” under a disability insurance company’s standards.  Most courts have found that appropriate care means such care as is necessary and causally related to the condition forming the basis of the disability claim.  Any treatment that a reasonable patient would undergo after considering the opinions of medical professionals may be considered appropriate.

Many of the newest policies contain provisions requiring the insured to be “receiving the most appropriate treatment and care, which conforms with generally accepted medical standards, by a doctor whose specialty or experience is the most appropriate for the disabling condition.” The most stringent of these “most appropriate care” policies have provisions stating that you may be required to undergo surgery to receive disability benefits.  Because the plain language of the policy clearly states that the insurer may require surgery, courts are more likely to affirm this policy provision, finding that you contracted away certain rights at the point of sale.  As a matter of personal autonomy, you do not have to undergo surgery, but if you don’t, you may not receive benefits under applicable contract law.     

Although this last category of policies places a heavy burden upon insureds to demonstrate that their care is the appropriate course of treatment, meeting this burden is not impossible as insurance companies often suggest.  For example, although a cervical fusion may be most appropriate for some individuals with herniated or degenerative discs, the dangers inherent in this procedure are such that continuing non-surgical treatment and cessation of aggravating work activities is actually the most appropriate care.  One of the best ways to ensure that your insurance company understands why you have selected certain treatment as most appropriate for your condition is to have your treating physician carefully detail the recommended treatment and the reasons it has been selected.

Your insurer is supposed to protect you in times of disability, but you also need to protect yourself.  Physicians should carefully read their policies and compare the policies of different insurers to find one that is fair.  In reading policies, pay close attention to innocuous-looking phrases such as “regular care of a doctor,” as these terms are often assigned surprise definitions elsewhere in the policy.  Ultimately, the fight over who has the right to control your body is one you must win before it starts.  Know your disability insurance policy’s provisions, and if you find yourself in a situation where you may need to file a claim, consider hiring an attorney beforehand.

Edward O. Comitz, Esq. heads the healthcare and disability insurance practice at the Scottsdale-based law firm, Comitz | Beethe. For more information about disability insurance issues, please visit www.disabilitycounsel.net.

DISCLAIMER

The information in this article has been prepared for informational purposes only and does not constitute legal advice. Anyone reading this article should not act on any information contained therein without seeking professional counsel from an attorney. The authors and publisher shall not be responsible for any damages resulting from any error, inaccuracy, or omission contained in this publication.