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) 

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

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)