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April 28, 1993

Court-Ordered Reimbursement for Unproven Medical Technology: Circumventing Technology Assessment

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.

JAMA. 1993;269(16):2116-2121. doi:10.1001/jama.1993.03500160086038

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)

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