Wednesday, January 30, 2019

Duty of Care Revisited -- all is not well in Hawaii or California

Duty of Care (King v. CompPartners) was reviewed in this column on 10/16/18. The case involved the sudden discontinuation by a Utilization Review (UR) physician of patient Kirk King's klonopin. King filed suit based on negligence and malpractice because the UR doctor arbitrarily disconinued his medication and thereby caused him to have four epileptic seizures. Eventually the case went to the California Supreme Court which decided that "the exclusive remedy for disputes arising out of the UR process belongs to the workers comp system."  The case was remanded to the District Court. King was barred from pursuing a tort claim. 

We wrote in this column that the decision protects UR physicians from malpractice lawsuits. But Justice Mariano-Florentino Cuellar wrote in his opinion that it might be time for the California legislature to take a look at the law since it could now be argued that protections in the law for injured workers "may not be set at optimal levels and the legislature may find it makes sense to change them."

It makes no sense that treating doctors are subject to Duty of Care, a protective legal concept that protects patients from cavalier care, whereas by contrast UR doctors, who do not interview or examine the patients, are not. 

It makes sense to change the law so that both UR and IMR (Independent Medical Review) doctors can be brought under the same Duty of Care umbrella as their PTP (primary treating physician) counterparts. Legislative action is now an issue in Hawaii and California. 

We got action, but maybe not with quite the slant originally sought.  In Hawaii debate now rages over whether or not Independent Medical Examiners (IMEs) should owe the same duty of care to injured workers as they do to their other patients. H 863 by Rep. Aaron Johanson and SB 1411 by Sen. Les Ihara in Hawaii would require that the IME be licensed in Hawaii, possess malpractice insurance, and "owe the same duty and standard of care to the injured employee as owed to a traditional patient." The bills would also make permanent an employee's right to record medical examinations.

In California, UR and IMR doctors are ripe for this type of legislation -- neither actually interviews the patient or even examines the patient -- but the California Supreme Ct has let 'em both off the hook. So the reviewers who know the patients less than the treating doctors get away with less review of their decisions because they're exempt from Duty of Care obligation. 

What is needed in both Hawaii and California is legislation that states that UR, IMR, as well as treating doctors, shall be subject to  obligatory Duty of Care.

We'll discuss whether or not an employee has a right to record a medical examination in another column. 


Workcompcentral News, "Lawmakers Bring Back Duty of Care Proposal for IMEs," 2019-01-28

The Weinmann Report,, 2018-10-18  ("Duty of Care versus Utilization Review") 

Workcompcentral Column ("UR physicians do not owe injured workers Duty of Care"), 2018-09-18

The Weinmann Report,, 2018-08-26
("Utilization Review physicians do not owe injured workers Duty of Care")

Wednesday, January 9, 2019


Under the direction of Insurance Commissioner Dave Jones the Department of Insurance has adopted new regulations intended to implement the provisions of Assembly Bill 72 (Bonta). For the legislative wonks among us, that means that Chapter 492, Statutes of 2016, now govern how "surprise billing" will be done. 

That means that AB 72 which is supposed to protect us from high medical bills when we get care from out-of-network providers has new hurdles to implement. For review, an out-of-network provider may be the doctor your Medical Provider Network (MPN) calls in to provide care for you when the MPN does not have a particular provider's specialty in the MPN. That's when the out-of-network provider may bill more than the MPN's subscribers expect. As of 1 January 2019 there are new regulations, e.g., average contracted rates approved by the Office of Administrative Law (OAL).

Here's how it'll work: let's say you, as a subscriber to Blah Blah MPN, get sick and require specialized medical care not available in your provider network. That circumstance is the cue for the MPN to call in non-contracted physicians. Under this circumstance the non-contracted or out-of-network physician is allowed to bill more than would be allowed if the service were prescribed by an in-network physician. Sometimes a whole lot more! Therein lies the mighty consumer squawk!

Under the new law the out-of-network provider may charge 125% of Medicare or the average contracted rate for the particular geographic area involved, whichever is more. The new regulations per Insurance Commissioner Jones set up methodolgy for this calculation. The resulting figure is the "average contracted rate."

The idea is to standardize rates and avoid disputes. Rate adjustment to recognize inflation will be taken into account. 

At the same time insurance plans and MPNs will supposedly be obliged to have adequate networks of in-network physicians so that calling in out-of-network physicians will be minimized. In theory it'll be the obligation of the network to provide timely care via in-network contractors. That's where the real rub is -- the statement we have from the insurance commissioner says "insurers are required to maintain an adequate provider network to ensure timely access to care for their policyholders." The statement also says that "when patients are forced to go to out-of-network at an in-network facility, the patient should not have to pay more for their care and the providers should be reimbursed fairly (italics added)."

Aye, and there's the rub! The language we want to see in law on this matter should not say "should," it should say "shall." This one 
word would convert a wishy-washy statement into a firm statute. 

Under AB 72 we already have language to establish an Independent Dispute Resolution (IDR) mechanism. This item could be the vehicle that establishes fair and equitable reimbursement compliant with the aforementioned Chapter 492.

Governor Newsom has already signed an Executive Order that establishes a state-run purchasing program for prescription medications. Now it's time for follow-up. 

The Weinmann Report ( calls upon Governor Newsom to sign an executive order to require MPNs and insurance providers to be fully staffed with all specialties. Otherwise we've left a huge loophole open for provider networks to skimp on staffing and be obliged to use out-of-network providers. 

Friday, November 23, 2018



The "Pacification of Physicians" is the process used by insurers, adjusters, politicians, and others to take down physicians who fail to behave like lapdogs to paymasters. 

"Burnout" is the name given to physicians who because of increasingly arduous demands quit the profession, at least, the care-giving part of it.

Physicians, afraid of consequences if they speak up, step aside from controversy.  That's when administrative managements rush to the front. When that happens physicians find that their treasured professionalism gets trampled. Consultatons are simply eliminated from Medicare. In Workers Comp, Utilization Review is used to demolish treatment protocols.             

Physicians have had a modicum ot success in repelling the likes of Maintenance of Certfication (MOC) even though opposed by smooth talking para-professionals buttressed by self-inflation and the crafty infusion of money advanced by slick corporate interests. 

As for "burnout" talk, The American Medical Association (AMA) points out that burn-out of physicians leads to increasingly early retirements. The American Academy of Neurology (AAN) tags along, going so far as to install a Burnout Task Force. A recent quote from NEUROLOGY TODAY was that women are more burned out than men. It was discovered that women who responded to a survey on burnout were about 7 years younger than their male counterparts. Factors contributing to burnout were listed, e.g., "emotional exhaustion" and "fatigue." The link to disappointing remuneration -- we mean payment -- was acknowledged.

It was mentioned that male neurologists tended to take refuge in personal hobbies while the women shifted their attention to teaching and administration. In a symposium sponsored by the Union of American Physicians and Dentists (UAPD) the increased proclivity to suicide was discussed. In fact, the UAPD recently sponsored an interdepartmental CME on "burnout" at Harbor Hospital. In NEUROLOGY TODAY, 11/15/18, it was stated that "women were more likely to mention suicidal ideation." Men tended to dwell on the suicides of colleagues as opposed to their own morbid thoughts. 

In PRACTICAL PAIN MANAGEMENT, April/May 2018, the AMA was credited with helping physicians "by advancing initiatives that enhance efficiency, professional satisfaction, and the delivery of care." For this writer, that's hogwash, not clout. It is clout that's needed, not effete efforts from the parlor.

While debate and legislative effort has a place what physicians need is a fight-back model. That means organizational protests and job actions. Active protest is the name of the game. Absent a high level of protest physicians will end up providing increasingly efficient and depersonalized care at their own expense. That means squeezing more and more patients into increasingly narrowed time slots. Legislators haven't a clue because nobody tells Senator Blowback that he has used up his RVS allotted time and that he has to get out so the next patient can enter. 

The inevitable result is disappointment among physicians and patients alike. Better to follow the example of Macbeth: "Whiles I see lives the gashes do better on them." 

Physicians need to adopt this combative mode while there's still a combat in which to engage. 


UAPD Triennial Convention, 26 Oct 2018

Documentary movie on burnout, "Do No Harm," by Robyn Symon (feature length film exposing the silent epidemic of physician suicide, winner of 2016 Roy W. Dean Grant for feature film  documentary)

Practical Pain Management, April/May 2018, "Dousing the Physician Burnout Epidemic: An AMA Perspective," by David Barbe, MD

Neurology Today, 15 November 2018, "Feeling Burned Out? Why Your Age and Sex May Make a Difference," by Gina Shaw

Tuesday, October 16, 2018

DUTY OF CARE VERSUS UTILIZATION REVIEW: Corrective legislation is indicated (revised from earlier article)

Worker's Malpractice Action Against UR Doctor Comes to an End, viz., workcompcentral, 2018-16-12. This unfortunate decision has triggered interest for new legislation to correct wrongful and abusive denials of care to injured workers. 

The gist of this case (King v. CompPartners, No. E063527, 10/10/18), involves the unfortunate abrupt and arbitrary discontinuation of patient Kirk King's klonopin with the even more unfortunate triggering of four epileptic seizures. 

For review, here's the facts: Kirk King suffered back injury at work. He was prescribed klonopin to relieve anxiety and depression caused by chronic back pain. In July of 2013 the UR physician working for Comp Partners decertified the medication without advance preparation such as advising the patient, preparing for alternative treatment, or warning the patient about sudden withdrawal. King then had four epileptic seizures. King filed suit based on negligence, malpractice, and emotional distress. Defendants demurred, the Superior Court Judge sustained the demurrer, the 4th District Court overturned the Judge and then the California Supreme Court overturned the District Court by ruling that "the exclusive remedy for disputes arising out of the UR process belongs to the workers comp system." The case was remanded to the District Court. King was barred from pursuing a tort claim. So much for Kirk King and his seizures? Maybe not. 

Although the ruling appears to establish that the alleged malpractice was protected by law and is unassailable in the courts, there's a game-changer, e.g., Justice Mariano-Florentino Cuellar's statement said that the protections for injured workers "may not be set at optimal levels and the legislature may find it makes sense to change them."

Language to challenge legislators to change the law so that Utilization Review doctors are bound by the same Duty of Care as Treating Physicians has already been submitted to selected legislators. 

It makes no sense that treating doctors are subject to this level of practice whereas the UR doctors who may alter their treatment decisions are not. 


Workcompcentral News, "Worker's Malpractice Against UR Doctors Comes to an End," WEST, 2018-10-12 (readers can click on the full court decision at bottom of this reference)

Workcompcentral Columns, "UR Physicians Do Not Owe Injured Workers Duty of Care," 2018-09-18 (reprinted from The Weinmann Report,, 2018-08-18)

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.


"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, 

Tuesday, August 21, 2018


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. 


"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 (, 05/15/17

Monday, August 13, 2018


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,, includes past articles on utlization review denials)