However, “might have produced a more optimal outcome” is not much of a basis for a claim. When you sue an insurer, you really want it to be based in contracts law – ie. you AGREED to cover this and now you’re breaching that agreement. Let the debate be on the specific procedure’s inclusion in the coverage language. The outcome matters for damages, but again, you’ll need something stronger than “might have”.

http://www.ted.com/talks/brian_goldman_doctors_make_mistakes_can_we_talk_about_that.html

Especially if the patient is willing to pay out of pocket.

I expect my doc NOT to have a god-complex, and many do. I respect their education, but some of them are donkeys. And not all patients are idiots who make wild guesses about their health based on brief consultations with Dr. Google.

I make a living doing that–that is, diagnosing and treating problems with complex machines given limited and sometimes misleading data. My machines are computers instead of people, but I fancy that the process of gathering data, generating and testing hypotheses, and trying fixes (all while doing your best not to harm the machine) is much the same.

I sometimes think of my physician as my “medical bookie”, an expert who can lay odds on the cause of my ailment, and on which treatment is most likely to help what I probably have and least likely to cause me harm.