Sunday, August 26, 2018

Utilization Review Physicians Do Not Owe Injured Workers "Duty of Care"



That Utilization Review (UR) physicians do not owe a duty of care to injured workers can reasonably be deduced from the recent California Supreme Court decision which trashed Kirk King's tort claim over an incorrect and harmful UR decision.

In a nutshell, Kirk King sustained back injury in 2008 that led to chronic pain associated with depression. Klonopin was prescribed by his treating physicians who interviewed and examined him. He did well on this medicine for two years. That's when Dr. Naresh Sharma decided without interviewing or examining the patient that the klonopin was not medically necessary. The hitherto authorized medication was then summarily discontinued. The sudden withdrawal of medication led to King's having four seizures. 

King and family asserted that Dr. Sharma and his Utilization Review Organization (URO) employer had acted negligently and since Sharma was working for the URO known as CompPartners both deserved to be disciplined and sued.

Not so said the court. Hiding behind the mantle of law, the justices totally ignored the patient's plight. Their ruling side-stepped the tort issue and said instead that the Exclusive Remedy for this type of dispute is entirely within the purview of the utilization review process. Too bad for Kirk King. All  the better for the corporate interests and the employers that control and operate UROs.

On the other hand, the court noted the utilization review process may not be working as it should -- an open invitation for new legislation.

Justice Mariano-Florentino Cuellar was quoted in Workcompcentral, 8/24/18 by Greg Jones as saying that protections for injured workers "may not be set at optimal levels and the Legislature may find it makes sense to change them"-- another open invitation for new legislation to revisit the authority of utilization reviewers and their UROs. 

Changes should be introduced for legislation in 2019

Using Gut and Amend techniques as mentioned in our previous column on SB 790 is one way these changes can be made. We would of course expect employers to suffer their own seizures at the thought of it. 

Here's our Big Five of Recommended changes: 

Change Number One: UR doctors should be obliged to carry the same duty of care that is now borne by treating doctors. 

Change Number Two: UR doctors should be licensed in the states in which they provide UR opinions and should be subject to that states medical board for discipline just as treating physicians already are.

Change Number Three: UR doctors should be obliged to interview and examine their patients.

Change Number Four: Employers should be penalized if they allow treatment to be altered or terminated before a replacement care plan has been approved by the treating physician(s). Actually, there already is such a provision only as in the Kirk case it is usually ignored.  This example shows how laws without teeth can safely be ignored. 

Change Number Five: Wrongful and/or harmful UR decisions should increase the injured worker's disability payments.

References

"High Court Rules Exclusive Remedy Precludes Tort Claim Over UR Decision," workcompcentral news article, Greg Jones, 08/24/18

"Utilization Review as a gift to insurance companies," posted by bobweinmann, 03/11/2012, The Blog/Total Capitol

"Utilization Review: Hypocrisy in Velvet Gloves," column in workcompcentral, 03/26/14 (also posted on The Weinmann Report, www.politicsofhealthcare.com) 

Tuesday, August 21, 2018

SENATE BILL 790 (McGuire) BITES THE DUST



Our decidedly negative story on SB 790 (McGuire) about gifts and benefits in medication prescribing and dispensing was published on 15 May 2017. We asserted that the bill actually showed how little the author knew about drug pricing and how physicians prescribe. Senator McGuire's press release at the time said that the "interaction with the pharmaceutical industry is associated with ... unnecessary drug prescriptions ... borne by the patient and less availability of generic drugs." 

McGuire and crew didn't mention then that the mark-up or profitability of generics was often more than trade name medications or that drugs that were generic equivalents might not be "bioequivalent."

McGuire said at the time that data from 2014 showed that California physicians received the highest number of gifts and payments from pharmaceutical companies of any state. 

We recommended that the author take his bill back to the drawing board. We're glad to say he has now dismantled the drawing board. 

According to Senator McGuire's office SB 790 is being set aside so that new language on an unrelated topic such as Natural Resources  can be inserted. The current text of SB 790 will be tossed and replaced with language on something else -- THAT, dear reader, is how "Gut and Amend" bills are concocted. 

One of the first organizations to oppose SB 790 was the California Neurological Society (CNS).  Kudos to CNS for foresight, action, and success. 

References

"California Senate Passes Ban on 'Gifts' to Physicians," Thomas Sullivan, from POLICY  AND MEDICINE, 05/04/18

"Senate Bill 790 (McGuire): Me too legislation on gifts and benefits," The Weinmann Report, Robert L. Weinmann, MD, Editor (www.politicsofhealthcare.com), 05/15/17

Monday, August 13, 2018

KP PUBLIC AFFAIRS ASSUMES ADVOCACY AT CSIMS


The California Society of Industrial Medicine and Surgery (CSIMS) aligned with AdvoCal represented private physicians engaged in industrial or occupational medicine for 37 years. No more. The new CSIMS player for association management and legislative advocacy is KP Public Affairs -- the arm of KP Public Affairs that will lead this effort is Bryce Docherty, an experienced lobbyist and KP Public Affairs partner. We wish him well.

KP will be picking up some major challenges, e.g., the Division of Workers Compensation (DWC) has made it known for several months that it wants to change the medical-legal fee schedule. DWC denies this move is a ploy to lower payments (neither do they imply that they're gonna' raise 'em either!). Instead, DWC blurts out that all they wanna' do is "clarify the use of complexity factors relating to causation, medical research, record review and apportionment." 

In translation, this language means that DWC wants to make it increasingly difficult to use billing codes that pay more than the minimum allowed. In other words, it would not automatically be a complexity factor that a doctor were sent 40 or 50 or even 100 lbs. of medical records -- no matter how many hours it took to look 'em over and comment accordingly. Likewise, DWC reportedly also intends to make the issues of causation and apportionment more difficult than they already are -- no matter how much so doing harms injured workers whose access to high powered specialty reviews is likely to  be compromised by such attempts. 

That is why Docherty was quoted by Elaine Goodman in workcompcentral, "New Management Hopes to Bring 'Renewed Energy' to CSIMS," 2018-08-13 as saying "We're focused like a laser on the med-legal fee schedule issue."

Docherty and company will also face other long standing issues one of which is wrongful denials of medical  care by Utilization Review (UR), often by physicians who are not even licensed in California and who therefore are not subject to review or discipline from the California State Medical Board or for that matter from any other state medical board since out-of-state medical boards do not have jurisdiction in California.

Likewise, the Utilization Revew reliance on the Independent Medical Review (IMR) process, mostly regarded as a rubber stamp for the vast majority of UR denials, needs to be re-assessed. In fact the IMR process resembles the secret dossier process of pre-revolutionary France when nobles could file "lettres de cachet" which meant that an arrest warrant could be issued without the  accused knowing the identity of  the accuser. In workers comp, the doctor who gets an IMR denial isn't told who issued the denial. Rebuttal is effectively foreclosed except if one can argue "prejudice" which one can't reasonably do without knowing who the accuser is. 

We trust that the KP Public Affairs team will dig into all of these issues (besides Docherty that includes Christina DiCaro, Alex Torres, and Tammy Hodgkin). 

Stay tuned: we'll expand this issue into "Lawmakers Want Auditor to Review Timeliness of Care," workcompcentral, 2018-08-07). Clearly, the rate at which care prescribed by treating physicians and their consultants is denied is an impediment to timely care). 

...  to be continued (in meantime, check out "When Carriers Ignore Judges' Order, workcompcentral column, Weinmann, 2018-06-18). 

Robert L. Weinmann, MD, Editor (The Weinmann Report, www.politicsofhealthcare.com, includes past articles on utlization review denials) 

Sunday, June 3, 2018

CAN INSURANCE COMPANIES DISREGARD ADMINISTRATIVE LAW JUDGES' (ALJ's) ORDERS?


When can insurance companies ignore judge's orders? Anytime they want to it appears. Following is a case example (this piece is a follow-up and revision of the original article posted last week. It is based on newly received information including a recent ALJ decision).

Let's start with the Notice of Hearing dated 12/9/13.  At the bottom of the document is the signature of a Workers' Compensation Administrative Law Judge. The document says "Defendants agree to authorize Botox injection." The decision is made based on a doctor's report dated 8/2/13. The document also states that the issue at hand is a "Dispute Resolved by Agreement." 

Now, four and one-half years later, the patient states that the injection has still not been done.  

The Proof of Service shows that Minutes of Hearing were served on the interested parties on 12 December 2013. In this post we're not naming the parties or even the insurance company since to the best of our knowledge it is not uncommon for insurance companies to ignore judicial orders. 

The patient was injured in a five-car motor vehicle accident in 1993. The injured party was rear-ended twice and received hospital care. She tried to return to modified work. When her production didn't match pre-injury standards she was fired. Treatment and hospitalization were originally accepted by the insurer. Injured body parts were adjudicated and seemingly were determined to include the lower back, neck, knees, and shoulder. Our documentation reflects diagnoses of cervical disc disorder with myelopathy with severe disc protrusion at C6-7 with progressive degenerative changes superimposed at the injury site. The clinical note at the time said that patient "needs cervical spine decompression because of increasing spinal cord compression and ... is one fall away ... away from quadraplegia (sic)." Despite the gravity of her condition the neck surgery was repeatedly delayed. It was finally done in August of 2017. 

With reference to the lower back patient had lumbar laminectomy at L5-S1, lumbar epidurals, and a caudal block. Patient's left knee sustained meniscal tear. She had three surgeries for right knee meniscal tear. She sustained derangement of the left shoulder. 

Her treating physician or PTP recommended botox injection. This treatment was litigated and eventually supported by the ALJ whose order dated 12/9/13 seems to have been ignored by the insurance company. How is such a scenario possible? Can insurance companies decide which judicial orders they'll follow and which they won't?  

Addendum 7 June 2018

The latest ALJ order is from May 1st, 2018.  It names a specific physician as " authorized to continue to serve as PTP." The victim (formerly, we said "the patient") said that it took over a year for the insurance company to pay her bill and that "due to their mishandling of billing and payments he (the physician) will not be moving forward with me as a patient." The applicant who now lives out of state said that none of the doctors she's talked to are willing to accept California Workman's Comp Cases. It appears that the legally designated PTP has stepped aside. The patient-applicant is now in the proverbial cold. 

This turn of events, coupled with the facts that the ALJ decision of 12/9/13 said that "defendants agree to authorize Botox injection" and that this injection has still not been done after nearly 5 years shows us how some patients get hung out to dry. 

WCAB should assume jurisdiction, perhaps via the equivalent of en banc jurisdiction, and see to it that this patient gets the care that has been authorized by two judicial decisions, the first for botox injection, the more recent for future medical care. 

Monday, May 14, 2018

MALPRACTICE CASE SOON TO BE DECIDED BY SUPREME COURT


Malpractice reform in Utilization Review is again on the line, this time because the California Supreme Court has scheduled hearings re  King v. CompPartners on May 29. The case resolves about the rights of an injured worker when UR denies access to treatment ordered by a California licensed  physician and when, as a result of this medically wrong UR decision, an injured worker is not only denied treatment but also suffers harm as a result of the combined negligence of UR and the insurance carrier that benefits financially by being absolved of its obligation to pay for care.


The current issue revolves about the decision of an insurance company to stop paying for Kirk King's klonopin. The insurance company's decision was made on the basis of a utilization reviewer's wrongful judgement that could in due course prove harmful to physicians engaged in UR. Our information is that the UR doctor made an incorrect and harmful decision that was happily adopted by the insurance company. This quick-step could end up with a two-step revision of UR, namely, requiring that UR physicians be licensed in the states where their decisions are used and that they carry malpractice insurance in those states. This publication favors both steps. 

The California Workers Compensation Institute  (CWCI) has argued  that UR is not medical practice, a clearly absurd position to treating physicians and to the patients who are harmed. This fatuous argument was supported twice by Gov. Schwarzenegger and once by Gov. Brown who vetoed bills that would have implemented state licensing for UR and IMR (Independent Medical Review) doctors. Brown's reasoning was more tortured than Schwarzenegger's -- he said that requiring UR doctors to be licensed "would be an abrupt change and inconsistent with the manner in which utilization review is conducted by health care service plans under the Knox-Keene Act and by those regulated by the California Department of Insurance."


THAT is just the point: UR and IMR decisions that deny indicated and necessary care are harmful intrusions into medical care and should be squashed. These denials require the abandonment of the duty of care owed to injured workers. CWCI's reading of the law is frivolous, legalizes abandonment of sick and injured workers, and deserves to be repealed along with enabling law created by SB 863 --  which added insult to injury by adding IMR to the Utilization Review process.

In a nutshell, in the unfortunate case of Kirk King, the insurance carrier stopped payment for prescribed medication based on  the UR doctor's report. The result was that the patient suffered epileptic seizures.  

The opinion of this publication is that the injured worker was abandoned and that the UR system and the insurance company were at fault and opened the door to the malpractice litigation now in progress. The harm that befell Kirk King is proof that the UR system practiced unsound and negligent medicine. 

The Supreme Court should find that UR doctors owe a duty of care to injured workers and that in the King case UR and the insurer were negligent. Such a decision will restore equity between treatment and utilization review. 

References

High Court to Hear Arguments in UR Malpractice Dispute May 29, Workcompcentral, 2018-05-11

Malpractice by Utilization Review?, The Weinmann Report, 12/13/2014 (www.politicsofhealthcare.com)

Malpractice Reform Makes it to California Supreme Court, The Weinmann Report, 01/02/2017


Wednesday, May 9, 2018

CALIFORNIA'S PROPOSED DIALYSIS INITIATIVE



The California Dialysis Initiative is supposed to come up for vote in November. Its avowed purpose is to set arbitrary limits on what insurance companies pay dialysis clinics for actual patient care. The initiative sounds like it might be a protective device shielding patients from being overcharged. It isn't.

The dialysis clinics will be obliged to pay physicians and other providers less if they want to maintain current levels of corporate  profit. At the same time, to keep administrative charges intact, the clinic administrations will be obliged to scramble their physicians and require them to see more patients per unit of time.  It's called "efficiency." 


The California Medical Association is opposed to the initiative  because it poses potential harm to patients, but probably also because it poses financial hardship on large clinics and healthcare plans. For instance, healthcare contracts to provide care would have to be revisited and revised downwards. Current contracts would have to be renegotiated.  Physicians, through no fault of their own, would be obliged to bear the brunt of reduced remuneration to keep the money flowing to the upper echelons of administration. That's how business is done in America, isn't it? 


Once profitability is reversed recruitment of providers will drop. The trouble is that dialysis patients aren't in-and-out customers -- they often need lengthy visits, often more than occasionally -- so in the final analysis this initiative is against their best interests. That's why this initiative needs to go back to the drawing board.  

Thursday, May 3, 2018

SB 1303 (Pan and Galgiani) is a step forward


SB 1303 is follow-up legislation to SB 1189 (Pan) and expands upon the partial success of the earlier bill.This legislation, initially sponsored by the Union of American Physicians and Dentists (UAPD), is currently co-sponsored by the California Medical Association (CMA). It requires counties with 500,000 or more population to rely on physician-MDs or DOs who are Medical Examiners to do forensic autopsies. It does away with the outmoded and politically orientated Sheriff-Coroner system. All that is explained in our earlier reporting illustrating how cover ups of wrongful death could happen under the Coroner system. 

The UAPD Legislative Report, 4/28/2018, said that UAPD President Stu Bussey, MD, JD, and Bennet Omalu, MD, MBA, of movie Concussion fame, "vociferously advocated on the need for this bill" before the Senate Governance and Finance Committee. Clearly, their testimony was convincing. 

The CMA Legislative Hot List, 5/3/2018, states that the San Joaquin County Board of Supervisors recently eliminated the office of the sheriff Coroner and adopted a Medical Examiner model. CMA, with deserved self-praise, said "the pressure from this legislation clearly influenced the county's decision." 

The Weinmann Report, accepts plaudits, too. The California Society of Industrial Medicine and Surgery (CSIMS), the California Neurology Society (CNS), and others who saw the need and supported this legislation also deserve recognition. 

As we go to print, our information is that the bill is in Senate Appropriations. Physicians should write, e-mail, or fax Doug Chiappetta who is handling the bill for the UAPD and Stuart Thompson who is doing the job for the CMA to give this bill high priority. SB 1303 is a step forward in restoring professional prerogatives to properly educated professional persons.

References

Dr. Richard Pan Introduces Bill to Boost Public Confidence in Autopsy Reports, 20 Feb 2018, 
contact Shannon Velayas Martinez, 916-271-2867

The Weinmann Report, "SB 1303 would replace coroners with medical examiners," 2/25/18

The Weinmann Report, "forensic autopsy bill clears senate moves to assembly, 06/02/16

The Weinmann Report, "When is death by drowning described as 'undetermined'? " 5/30/16

The Weinmann Report, "Probable drowning," 5/23/16

CSIMS, "Issue of Interference in forensic autopsies isn't a new issue," 12/20/17