Friday, April 10, 2020

Covid 19: Is Marketing in Health Care taking Precedence over Safety? Are some institutions designated as "health-care" suppressing internal information about Covid-19?

This story concerns an elderly physician we'll just call "Dad. " This saga was submitted by his son whose name is being protected by this newsletter since we've not yet called him for further follow up. We're also not yet disclosing the name of the hospital since the hospital itself has so far not had opportunity to respond to this story. Here is what we have learned so far. 

Dad is a private practice internist whose patients include geriatric patients in a rehabilitation hospital. Out of an abundance of caution to protect these patients Dad has been wearing a PPE mask while attending these patients. He felt he was doing the right thing. We are told that the hospital administration did not agree. We are told that the hospital administration was afraid that their patients would worry if they even thought that their doctors were worried about Covid-19. In economic terms the administration worried that families would pull relatives from the hospital, in short, would facilitate early discharge. For the hospital we were told that the concern for a possible medical problem for the patients was being supplanted by an anticipated economic problem for the hospital. 

We are also told that some hospital staff and patients tested positive for Covid and that since then the hospital administration has endeavored to enforce measures to block disclosure of this information. Disclosure is seen as a marketing risk. 

The person who submitted this story to us wrote that "there needs to be recourse for hospitals and administrators that are behaving this way. Making money is not more important than protecting our patients." 

Further follow-up is indicated, not just with reference to the unnamed hospital in this story, but to determine to what extent this narrative pertains to other hospitals and institutions designated as "health-care." We need to ask if the politics of health-care -- what this newsletter is all about -- has taken an ugly turn or not. 

Updated comment, 04/22/20: we've received comments of interest, e.g., some would like the AMA to take up this story whereas others think we should inform Pro Publica. In general, everybody is uncomfortable with the prospect of  physicians being intimidated and silenced by business or political interests. 

Wednesday, March 25, 2020

Corona Virus versus QMEs

Our office, designated to do a Panel QME, ran into a plethora of unexpected complications on a recent case. Various involved parties were worried, for example, about the assigned date -- they were fearful of travel, time spent in any doctor's office where a previous Corona patient might have been, and the unpredictability of the virus itself. Parties expressing trepidation included medical office staff, persons that might be asked to do diagnostic testing such as imaging studies or legal staff that might have to deal with a client who had just been to a medical office where somebody else might have left a viral particle. Lawyers' offices, saddled with their clients' medical legal problems, now also worried about exposure of their clients and their own legal staff to a novel virus known to have the ability to cause death. In all cases, front office persons were worried about their own exposure. What to do?

Here's what we did. All the parties were called. It turned out that the patient was willing to reschedule to a date that  might be safer, his attorney was agreeable and so was defense. The adjuster was compliant. The exam was rescheduled to a later date by which it was hoped the virus problem would be resolved. If not the above process could be repeated, i.e., postponed again. 

There has been considerable discussion of use of telemedicine but no overall agreement to date how it would be fair to all parties. In the meantime, it appears as though we'll need to rely on good faith negotiations. That task is likely to be as challenging as the Corona Virus already is. We should try anyway. 

Wednesday, March 11, 2020

Re AB 890 (Wood): Full Practice Authority for Nurse Practitioners 

AB 890, authored by Assemblyman Wood, DDS, is reportedly designed to fill a gap in access to healthcare. The underlying problem is that there are not enough physicians especially for injured workers (these patients are seen via workers comp). While attempts are made to train more physicians, this effort is not seen as adequate. Wood's solution is to allow Nurse Practitioners (NP) to fill the gap.The claim is made that NPs will gravitate to underserved areas and work for less remuneration than their physician colleagues. 

Nothing, however, in the current written legislation guarantees that NPs will gravitate to underserved areas or stay there if they do -- the NPs will not be obliged to give up chances for employment in better served areas or to charge less for services that the legislatue has deemed equivalent. Pay parity for the same job or equivalent services is to be expected especially by NPs who are properly organized. 

Unfortunately, The bill has verbiage harmful to physicians, patients, and hospital medical staffs. 

Item # 1: The bill says that "a nurse practitioner shall be eligible to serve on medical staff and hopital committees." So much for the exquisite education, training, and preparation that have to date been required of physicians. 

Item # 2: under Section 2637.101 it is stated that "there is in the Department of Consumer Affairs the Advanced Practice Registered Nursing Board consisting of nine (underlining added) members."

Item # 3: this item is under Section 2637, 103. It states that "commencing January 1, 2026, four (underlining added) members of the board shall be nurse practioners licensed under this chapter. 

Item # 4: Three members of the board shall be physicians and surgeons licensed by the Medical Board of California or by the Osteopathic Board of California and that "at least one of the physician and surgeon members shall (underlining added) work closely with a nurse practitioner" and that "the remaining physician and surgeon members shall focus on primary care in their practice." 

Item # 5: Two members of the board shall represent the public at large and shall not be licensed under any board under this division or any board referred to in Section 1000 3600."

Conclusion can be drawn with reasonable accuracy that the chief purpose of this bill is to change practice standards such that medical and/or osteopathic professional standards are no longer required for medical practice. 

Further conclusion is that AB 890 shows how a bill ostensibly designed to increase access to care evolved into legislation pitting one group's fiscal and professional prerogatives against another group's fiscal and professional percs. 

Saturday, July 6, 2019

Bad Faith Changes for Regulation 10451.1 have a good chance of passage

When a defendant objects to a bill for a Medical-Legal expense it must do so in compliance with LC 4622. Regulation 10451.1 is operative. Some defendants find the rules particularly onerous and want to tilt the process so that it will be more advantageous to insurers and defense interests. In recent months reports have surfaced that the number of petitions for non-IBR disputes has increased. These petitions have been filed by providers of medical services, e.g., QMEs, treating physicians, and diagnostic testing facilities. 

The key to this harmful and biased proposed regulatory change is that it will obliterate the right to be heard on a non-IBR petition if the Defense simply does not file a Declaration of Readiness. This proposed change is harmful to treating physicians, to the providers of diagnostic services, neither of whom will be able to go ahead with planned diagnostic or treatment protocols because of  wrongfuly denied QMEs, and to QMEs whose reports will be simply ignored. It will reduce access of injured workers to all of these services -- diagnostic studies and treatment not done or postponed and QME analyses of opposing claims. The method will be short, simple, and not sweet  -- arbitrary denials of bills, fake arguments proposing why approved bills should be paid at lesser amounts, and flat-out bill rejections. The inevitable result will be decreased access to diagnostic services, further reduction of doctors willing to treat injured workers, and fewer doctors willing to stand up as QMEs to the slings and arrows of outrageous fortune, ie, the clout of insurance companies. 

Ample examples of what the proposed changes in 10451.1 can get away with already exist, e.g., denying properly scheduled QME or AME reports based on spurious claims of which a favorite is that the QME or AME provider is "not in the MPN."

The proposed regulatory changes herein described are in bad faith and should be rejected. 

Thursday, May 9, 2019

Reneging on AB 1107 (Chu)

In its original form AB 1107 was supposed to give relief to injured workers who were being wrongly denied access to treatment. It was supposed to ease the administrative burden on treating physicians whose time for patient care was being diluted by unreasonable requests for documentation to entertain Utilization Review (UR). The main thrust of AB 1107 was to facilitate treatment by primary treating physicians by exempting them from UR under specific circumstances. This plank has now been removed and replaced by language that may actually increase legal costs. 

As a result of the fear that access to treatment might become too easy for injured workers the bill got amended in committee with the acquiescence of the author to narrow the proposal but to allow stakeholders to challenge UR conclusions, said challenges to include more legal wrangling with even less access to care since treatment will inevitably be delayed, postponed, or just not done while the wrangling process is in play. 

It is true that this proposal gives the applicant or patient an opportunity that wasn't previously available but it does not facilitate prescribed treatment by treating doctors -- and that, my friend, was supposed to have been the raison d'etre of AB 1107 in the first place. 

In the recent King v. CompPartners Inc case, August of 2018, a deserving patient was harmed by wrongful utilization review when authorization for his medication was  withdrawn. The injured worker tried to use "tort" law to sue the Utilization Review Provider but lost that battle when the California Supreme Court decided that work comp law provides  exclusive remedy for employees who allege injury because of treatment denial by UR. This decision in turn caused one of the Justices to say that the law for injured workers should be revisited.

THAT was what AB 1107 initially sought to do. Instead, we have a compromise which does not help injured workers when they need treatment but which provides them and their lawyers a way to challenge UR decisions later. This solution is another in the sordid list ot "too little, too late." This writer recommends revisiting the bill again to review the circumstances under which Utilization Review can be set aside so that injured workers get needed care in timely fashion. There is still time to amend the recent amendment. 

Reports reviewed for this editorial include

"Will AB 1107 Trim the Claws of UR," workcompcentral column, 2019-04-18 by Robert Weinmann;

"Turning the Clock Back on State's Workers' Compensation System, workcompcentral column, 2019-04-24 by Carlos Luna; 

"Utilization Review Physicians May Owe Duty of Care to Applicants, King v. Comp Partners, 2016, 243 Cal. App. 4th 685, Mullen and Filippi. 

Monday, April 15, 2019


Under current law, employers are obliged to establish Utililzation Review panels whose purpose is to review, approve, modify, or deny diagnostic and/or treatment recommendations -- some doctors are felt to have a penchant for the task. Other doctors sometimes see these UR doctors as URDS (Utilization Review Denial Specialists).

AB 1107 (Chu and Reyes) would take away some of the unbridled authority now enjoyed by UR panels. For instance, some of the denials seem outright arbitrary from the getgo -- physical therapy has a limit of 24 sessions per injury but there are no peer reviewed studies that show 24 as a reasonable cut off limit. It is widely accepted that the limit of 24 is based on economics and has nothing to do with science or medical treatment.

Legislators who are often not familiar with health and safety issues may not know that Utilization Review doctors do not interview or examine the patients on whom their decisions fall. Patients are often astonished that this practice governs their lives and access to treatment. Patients usually believe that their doctors make the medical decisions -- in fact, they do, but Utilization Review is allowed under the law to unmake these decisions.

So here is what AB 1107 would do:

1) AB 1107 would make medical treatment that is prescribed by a PTP (primary treating physician) no longer subject to Section 4610 or subject to dispute on the grounds of medical necessity

a) if the employee suffers from a serious chronic condition, or

b) if the requested treatment has been previously authorized by the employer and if the employer fails to establish that the treatment is no longer indicated, or

c) if the employer has established a medical provider network pursuant to Sec. 4616, and that

d) if there is a dispute the appeals board shall resolve the dispute, and that

e) the employer is not precluded from objecting to a treatment protocol on grounds other than medical necessity.

While this legislation does not carry a Duty of Care provision, a provision that makes PTPs and UR doctors equally responsible under the law for their decisions, it carries enough clout to modify the sometimes arbitrary and arrogant conduct of the Utilization Review system.

An Aye vote is warranted.


Utilization Review Physicians May Owe Duty of Care to Applicants, King vs. Comp Partners,, 2016, 243 Cal. App. 4th 685, Mullen and Filippi

Ten Years Ago: Out-of-State Evaluators Questioned, September 2018, 46 CWCR

All is Not Well in California and Hawaii, 14 Feb 2019, workcompcentral column, Weinmann

Duty of Care vs. Utilization Review, 2018-10-30, workcompcentral column, Weinmann

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")