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")