KUALA LUMPUR, Nov 12 — Nine medical associations have legally demanded that a third-party administrator (TPA) and its corporate client revoke a policy limiting chronic disease medicine prescriptions to generics.
In their October 29 letter of demand (LOD), the doctors’ groups demanded that MiCare Sdn Bhd, as well as Hong Leong Bank Berhad (HLBB) and Hong Leong Islamic Bank Berhad (HLISB), retract MiCare’s August 12 policy for panel clinics, hospitals, and pharmacies to prescribe and dispense only generic drugs for long-term medications for the bank’s employees since last September 1.
Alternatively, the medical associations demanded an amendment to MiCare’s policy to “expressly provide that panel partners retain full discretion in prescribing medication, and further stipulate that in the event a practitioner deems generic medication inappropriate for clinical reasons, any resulting financial liabilities shall be borne by the insured”.
According to the LOD issued by Evan Lee Advocates & Solicitors, its clients further demanded that MiCare and Hong Leong Bank include a statement in the policy confirming that the insured have been duly notified of such an amendment and to deliver proof of circulation of the amended policy to all panel partners.
“Take notice that should you fail to comply with this demand, we have instructions to take such steps as may be necessary to secure your compliance, including but not limited to commencing legal process against you by which you will be additionally liable to account for increased sums of damages, interest, and legal costs,” said the LOD, as sighted by CodeBlue.
The recipients of the LOD – MiCare chief executive officer Moses Hee, HLBB chief executive officer Kevin Lam Sai Yoke, and HLISB chief executive officer Dafinah Ahmed Hilmi – were given 14 days to comply with the October 29 notice of demand.
That deadline falls today. CodeBlue understands that as at the time of writing, neither MiCare nor Hong Leong Bank have responded to the legal letter that was carbon copied to the government’s Joint Ministerial Committee on Private Healthcare Costs.
CodeBlue has requested comments from MiCare and Hong Leong Bank. MiCare CEO Hee and Hong Leong Bank group managing director/CEO Lam are Singaporean citizens.
According to MiCare’s August 12 policy titled “Usage of Generic Medications”, as previously sighted by CodeBlue, the TPA had “received instruction” to implement changes regarding medication prescriptions for HLBB and HLISB staff.
The LOD described the instructions for MiCare’s policy as coming from an “undisclosed source”, adding it was inferred that the purported instructions would have originated from and/or were sanctioned by Hong Leong Bank, the main stakeholders.
Messrs Evan Lee, a medical malpractice and boutique litigation law firm, issued the notice of demand on behalf of:
- The Federation of Private Medical Practitioners’ Associations, Malaysia;
- The Penang Medical Practitioners’ Society;
- The Perak Medical Practitioners’ Society;
- The Private Medical Practitioners’ Society of Kuala Lumpur and Selangor;
- The Medical Practitioners Coalition Association of Malaysia;
- The Society of Private Medical Practitioners Sarawak;
- The Malaysian Association for the Advancement of Functional & Interdisciplinary Medicine;
- Pertubuhan Doktor-Doktor Islam Malaysia; and
- The Association of Private Practitioners Sabah.
Several of MiCare’s affected panel partners are members and affiliates of the doctors’ groups behind the LOD.
“Our clients for one wish to record their objection to [the] impugned policy in its entirety on account of it being an unlawful infringement upon clinical autonomy of patients and professional independence and practice privileges, which are exclusive to medical practitioners, clinics, hospitals, and pharmacies,” said Evan Lee’s LOD.
“From a legal and medical standpoint, no private entity, including managed care organisations (MCO), may dictate and/or fetter how a health care practitioner exercises his clinical skills and judgement.
“This does not only put affected insured patients at risk of adverse results from unsuitable treatment; it also unilaterally and unfairly exposes the health care practitioner to any consequential legal and disciplinary action.”
Evan Lee claimed that the generic-only policy put panel health care providers in a “legal and ethical quandary, where they are forced to choose to protect their business or professional integrity”.
“Whichever they choose, the impugned policy will cause the panel partners to break the law. Our clients obviously cannot support this.”
The law firm described arrangements between an MCO and a private health care provider that result in any change of powers of the latter as a “flagrant contravention” of Section 83 of the Private Healthcare Facilities and Services Act 1998 (Act 586).
“From a plain and ordinary reading of the proviso, insisting on implementation of the impugned policy is tantamount to an offence (if things must go that far),” said Evan Lee.
The law firm also cited various written ethical codes and guidelines by the Malaysian Medical Council (MMC), as well as the Code of Ethics for Pharmacists 2018, that it said affirmed the “illegality” of arrangements like the generic-only policy.
The MMC codes cited include MMC Guideline No. 005/2006 titled “Ethical Implications of Doctors in Conflict Situations”, MMC’s Code of Professional Conduct 2009, MMC’s Good Medical Practice 2019, and MMC’s Position Paper Revision 2022 on Managed Care.
“In all instances, the doctor in a managed care system has to place the interests of the patient and confidentiality above all other considerations,” according to a section cited in the MMC Guideline No. 005/2006.
MMC’s Code of Professional Conduct, as cited by Evan Lee, requires that medical practitioners – in their association with TPAs, insurance firms, or MCOs – ensure no conflict of interest in the provision of care for their patients. “Any form of incentives, limitations, control or contractual restrictions, which may impact or influence the standard or duty of care to the patient, must be avoided”.
Evan Lee pointed out that MiCare’s own standard terms and conditions with their panel partners, titled “Clinic Recruitment – Terms and Conditions”, accorded with MMC guidelines.
“Clinics are expected to provide medical services that are considered as accepted standard protocol by the Malaysian Medical Council guidelines and the ethical standards expected of a registered practitioner. This will include providing the doctor’s best expertise and intentions,” according to MiCare’s terms and conditions, as cited by the law firm.
Evan Lee said MiCare’s existing contractual agreement with their panel partners rendered the generic-only policy “impossible to perform” and may even be illegal under Section 24 of the Contracts Act 1950, “if things must go that far”.
“Our clients are prepared call it out for what it is – a cost-saving measure that benefits all stakeholders at the expense of the affected insured patients and panel partners.”
Previously, the Malaysian Medical Association (MMA) and the Association of Private Hospitals Malaysia (APHM) – both of which were not part of this LOD – condemned blanket generic-only mandates.
The two associations representing medical practitioners and private hospitals noted that although some patients may respond well to generic medications, others have allergies or require branded drugs for effective management of their condition.
CodeBlue previously reported IHH Healthcare Malaysia acting CEO Dr Kamal Amzan as saying in an internal memo within the private hospital group that therapeutic equivalence of generic medicines “must be demonstrated, not assumed”.
The heightened conflict between payers and providers comes amid a rise in medical negligence cases and multi-million ringgit court payouts against health care providers across the public and private sectors in Malaysia. Earlier this month, the High Court awarded a 22-year-old man RM7.4 million in damages after suffering amputations due to negligence by a government hospital and its doctors.
Senior lawyer Raja Eileen Soraya Raja Aman, a management partner at Raja, Darryl & Loh, previously said doctors should “stay in their lane” by recommending the best treatment plan to their patients, instead of considering the cost of care or insurance coverage that might not be defensible in court.
