That's a very different scenario than a doctor who is being paid to provide an expert opinion on the medical necessity of care. That obviously should be considered practicing medicine with all the normal liability.
These insurance doctors are not really evaluating case particulars. They are not second-guessing the diagnosis, they are looking at whether the proposed treatment is the "standard of care" for the diagnosis, and that customary less expensive/invasive treatments have been exhausted. Medicare and any other potential "single payer" government plan would do this also because sadly fraud by clinicians does exist.
For example when I had an injury I had to do 6 weeks of physical therapy (without improvement) before they would authorize an MRI scan and then surgery.
This is all just semantics. Arguably, the arbiter of what is "medically necessary" is practicing medicine. They have chosen to intercede in your care, and they should be liable for the decisions that they make leading to your health outcomes.
The legal system could just as easily have seen that the determination of which procedures are "medically necessary" is indeed part of medicine itself. It's a miracle of delusion and corruption that it went the other way.
If you were designing a legal system you probably wouldn't want for profit insurance companies to decide who gets to determine if a patient needs treatment, due to the obvious conflict of interest.
But that doesn't mean applying the same "malpractice" framework to the people deciding what's covered under the program is necessarily the right approach either.
We're fine with insurance companies sending adjusters out to inspect property damage or collision damage. We don't just expect them to pay for whatever the contractor or body shop says was necessary.
And if their adjustment conflicts with the body shop, but it turns out the body shop was right and I die as a result? Who gets that liability? That's what I'm talking about. You can make adjustments, but you are practicing medicine when you do so.
Unfortunately there are many examples of fraud on the part of practicing doctors. The insurance companies (whether private or government) can't just pay for whatever the doctors say they want to do.
Being an expert doesn't mean you are "practicing medicine". Suppose the medical standard is "you must examine the patient in person when creating a treatment plan."
We're going to apply that to some insurance job function operating outside standard medical practice how exactly?
It's not that I'm defending our medical system, it's just that applying "medical malpractice" concepts to the practice of financing of procedures seems to me to be a bit of a stretch.
A doctor at an insurance company isn't deciding the "final call" on anything. The patient can pay for it without insurance, insurance company management could say "ignore the doctor and pay for it", the patient's medical team could say "You can't afford the procedure and insurance won't pay for it, that's okay we'll do it for free!"
It's not that I'm arguing against some way of holding insurance companies accountable, I just don't think what doctors are doing there is practicing medicine.
If I hired a Hitman, if that fact were discovered I'd be prosecuted for murder or attempted murder, despite not pulling the trigger, despite not knowing if the intended target actually dies.
I don't think I can accept that people knowing or almost certainly knowing the outcome of their actions and taking those actions regardless should not responsible for the outcome under our legal system.
For a vast majority of people, and especially so with the sort of things that a) save lives and b) make the bean counters cringe, “won’t pay” is the same as “won’t get”.
