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Palmer v. Superior Court of San Diego County11/19/2002
arried out in a defendant's capacity as a health care practitioner. (Central Pathology, supra, 3 Cal.4th at pp. 190-191; Davis, supra, 27 Cal.App.4th at pp. 628-629; Cooper, supra, 56 Cal.App.4th at pp. 748-749.) In examining the conduct giving rise to the claim, the court must ask whether the acts performed were such as a medical practitioner ordinarily would be expected to perform in his or her capacity as a health care provider. (Davis, supra, 27 Cal.App.4th at p. 629.)
Palmer's argument here is that he does not claim injuries that relate either directly or indirectly to actual health care services provided by licensed health care professionals acting in their capacity as such. Instead, he claims his injuries relate to actions taken by SRS and PacifiCare in administering the HMO subscriber agreement, and those actions operated to prevent him from receiving the requested health care services. He thus contends the policies promoted by section 425.13 (e.g., lowering medical malpractice insurance premiums) do not come into operation when the utilization review services were performed by SRS as a financial consulting service to PacifiCare, even though SRS was simultaneously providing the direct medical care to Palmer as his primary care provider.
The closely intertwined nature of health insurance coverage decisions and medical necessity diagnostic decisions was recently discussed by the United States Supreme Court in Rush Prudential HMO, Inc. v. Moran (2002) ___ U.S. ___, 122 S.Ct. 2151 (Rush), and in Pegram v. Herdrich (2000) 530 U.S. 211 (Pegram). Both of these cases discussed ERISA preemption provisions, and set forth several analyses of the HMO dual role as insurer and provider. (In the Rush case, an Illinois statute requiring HMOs to provide independent review of disputes between primary care physicians and HMOs, and to cover services deemed medically necessary by an independent reviewer, was considered to regulate insurance within the meaning of the ERISA preemption provisions saving clause, such that no preemption occurred; other holdings need not be summarized here.) The Supreme Court observed:
"Rush contends that seeing an HMO as an insurer distorts the nature of an HMO, which is, after all, a health care provider, too. This, Rush argues, should determine its characterization, with the consequence that regulation of an HMO is not insurance regulation within the meaning of ERISA. [ ] The answer to Rush is, of course, that an HMO is both: it provides health care, and it does so as an insurer." (Rush, supra, ___ U.S. ___, 122 S.Ct. at p. 2160.)
The court in Rush, supra, further referred to its description in the Pegram case of "a feature of HMO benefit determinations," as follows:
"We explained that when an HMO guarantees medically necessary care, determinations of coverage 'cannot be untangled from physicians' judgments about reasonable medical treatment.' [Citation.]" (Rush, supra, ___ U.S. ___, 122 S.Ct. at p. 2168.)
Just as the Supreme Court acknowledged in Rush, supra, ___ U.S. ___, 122 S.Ct. 2151, the SRS medical director who made the disputed "lack of medical necessity" decision was acting as a health care provider as to the medical aspects of that decision. That there was also a financial coverage consequence of that decision is not dispositive for purposes of applying section 425.13 definitions of professional negligence of a health care provider. Such medical necessity decisions take place in the context of professional duties of care.
California law, in the Knox-Keene Act, requires a licensed health care service plan, such as an HMO or insurer, to adhere to certain standards in the utilization review context. (H
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