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Today the Boston Globe reported the story of a Massachusetts physician, Dr. Stephen A. Hoffman of Framingham, Massachusetts, writing illegal prescriptions to circumvent abusive insurance practices.

According to the story, Dr. Hoffman has become frustrated with insurance company practices restricting prescriptions allowances for patients–particularly for those patients whose prescription requirements exceed the amounts allowed by insurers. For such patients, Dr. Hoffman has overcome this restriction and channeled his patients the drugs that he believes they need under a spouses name. For example, if an insurer limits an insured to ten pills a month and the patient needs twenty, Dr. Hoffman would prescribe ten to the spouse. He desribes the practice as “badly broken,” and believes this practice as a “constructive stance.”

What I take from all of this involves standard of care issues and at what point a physician malpractices as a result of such restrictions placed on business assessments rather than sound medical judgment. Certainly this consideration is not original, but my question is the extent to which an HMO may be held liable for controlling the medical care of a physician. The standard in Massachusetts as held by the Massachusetts Appeals Court is that an HMO may be held liable if it has a right of control over the actual conduct of the physician alleged to be negligent. Chase vs. Independent Practice Ass’n Inc., 31 Mass.App.Ct. 661 (1991).

While a physician owes an absolute duty to the patient, what if the doctor, knowing that a patient will not be able to pay for uncovered medical care, makes treatment options that ultimately seriously injure a patient and that decision was based solely on the HMO’s refusal to accept treatment as reasonable and necessary?

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