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) 

6 comments:

  1. I have always thought they should be in state (the doctors) I have several UR turning it over saying its no medically neccesary causing Dr. Lemper to stop treating me due to harassment towards my doctor so now for 14 monthes I have had no pain doctor Workers comp just stopped taking care of me .....Is this ok ???? No that when people lik Lorry Mays a RN took her life in the bay area because she knew this was a battle to not win... And she was in the medical field...I wish and pray to GOD that I and others can change this ...WE INJURED WORKERS MATTER AND WE WANT TO BE BETTER AND GET BETTER.. It took 5 years for my neck surgery and I almost was paralized PLEASE all that read we must change this. My heart aches , I cry eveyday in pain and cuz I feel im a burden....

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    1. Some never even had licenses 26 years of my case being torn apart Dr. Lemper in Nevada knew it was strange that doctors from all over were doing stuff unheard of.

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  2. The only thing workers comp wanted to give me was drugs ....Never MRI'S never PT NEVER surgeries just drugs no shots which helped no pillow for my neck fusion no ortho bed cuz I cant get out of bed. No botox even knowing my Judge said yes they still never let me have the botox. The insurance company keeps getting rich as does the defence attorney while I rot and while no one else gives a rats ass about us injured workers.. Workers comp wants us to die.

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    1. I have gone back as far as 2013 and I super sick to my stomach I cant believe there r no comments ...Like hello can everyone see what this great man is saying...... Like PLEASE why R we letting tese things happen???? WHAT DO I NEED TO DO TO MAKE A CHANGE???? I DONT WANT TO DIE KNOWING THAT I CAN HELP I HAVE 26 YEARS OF knowledge OF WHAT INTERCARE DID TO ME .....WE MUST STOP ALL THE LIES ....THESE INSURANCE companies ARE KILLING THE INJURED WORKER AND MAKING DOCTORS LIE ABOUT CASES. WE MUST GO BACK TO LETTING THRE DOCTORS BE DOCTORS AND attorneys BE WHAT THEY DO AND THE JUDGES DO WHAT THEY DO BEST LIKE BE THE ANSWER BE THE BOSS AND SLAPPPP THE insurance COMPANYS WITH FINES AND ALSO FINE THE DEFENCE attorneys...Te defence attorney on my case made so much money that e retired HELLLLLLLO PLEASE SOMEONE HEAR ME. I WANT TO THANK YOU DR. WEINMANN FOR CARING AND FOR DOING THIS... ONE MORE THING MY AME EVEN SAID MY CASE IS JUST A JOKE AND WANTS JUSTICE FOR ME....THATS HUGEEEE.. UGGGG

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    2. PLEASE NO ONE DELETE THESE R ALL TRUE FACTS PLEASE HELP ME MAKE A CHANGE.

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  3. WHEN WILL ENOUGH BE ENOUGH ?????????? DOES ANYONE REALLY LISTEN????????? INJURED WORKER FOR OVER 25 YEARS I WANT IT OVER ..... WORKERS COMP CAN CARELESS... BUT IF I DIED THEY WOULD BE HAPPY.... HOW CAN I GET BETTER WHEN ITS ALWAYS A NO????????? EVERYTHING MY DOCTORS HAVE EVER ASKED FOR TO GET ME BETTER COMP DENIED .....SAID IT WAS NOT MEDICALLY NECESSARY. WHEN IS A SHOT OR SURGERY OR A MRI NOT NECESSARY. ????????????????? CONFUSED OF THE LIES, THE CHEATING ,THE FRAUD. I FOLLOW THE LAW AND SO SHOULD WORKERS COMP.

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