COURT-ORDERED REIMBURSEMENT FOR UNPROVED MEDICAL TECHNOLOGY - CIRCUMVENTING TECHNOLOGY-ASSESSMENT

Objective.-Because we found examples where courts ot law ruled against insurance carriers that had been sued for reimbursement for unproven medical procedures, we conducted a case study to determine the reasoni ng behind these decisions that run counter to accepted medical science . Such actions circumvent health technology assessment and could contr ibute 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 wh o had received an unproven or questionable health technology; 14 of th ese suits were decided in favor of the plaintiff, and the insurance co mpany was ordered to pay. Discussed in this article are six of these c ases, two involving Laetrile (amygdalin), two involving immunoaugmenta tive therapy, and two involving thermography, technologies that had pr eviously been assessed as not safe, not effective, or inadequately eva luated. Data Synthesis and Conclusions.-The circumstances determining how the courts arrive at these ''unscientific'' decisions fall into th ree general categories: (1) for legal reasons, the insurance contract is interpreted in favor of the insured; (2) the reluctance and/or inab ility, legal or otherwise, of the courts to use published scientific l iterature; and (3) the use of adversarial ''expert'' witnesses with po tential conflicts of interest. To address this situation, we first urg e the legal and insurance industries to cooperate in improving the con tract language and process in a way that would be both legally and sci entifically appropriate. Second, we encourage the courts to use and fo ster the use of published peer-reviewed scientific material as evidenc e whenever possible. Third, we recommend that the courts choose their own unbiased expert witnesses to interpret scientific material.