WHAT HAPPENS WHEN CLINICIANS DON'T TRUST REGULATORS?

USA Today published a piece on whether or not physicians should be forced to check a prescription database before writing opioid prescriptions. In Massachusetts Governor Charlie Baker proposed measures to obstruct physicians from prescribing these medications. Among the irresponsible provisions recommended for this purpose, one was to limit opioid prescriptions to 72 hours.  In all but the most emergent situations this rule would prevent patients from getting their prescriptions for more than three-days. 

Meanwhile, in California, Senator Lara submitted legislation, SB 482, that would require physicians to rely on a statewide data base known as CURES that does not yet exist before prescribing Schedule II or III medications. Failure to do so would make the physician subject to discipline by the state's medical board. This bill is currently on hold and awaits the 2016 legislative season that begins in January.  In the meantime, Gov. Brown signed off on AB 679 (Allen) which was chaptered on 11 October 2015 and extends the deadline for mandatory enrollment in the CURES system from 1/01/16 to 7/01/16. 

California also has Utilization Review (UR) obligations that primary treating physicians (PTPs) are obliged to accept. It works like this: physicians may prescribe diagnostic studies,  treatment programs, even medications, including non-opioid, or ask for consultations. Instead of complying with same, the patient is hung out to dry by the insurance company which says it is obliged to submit all such requests to UR before the prescription or treatment can be "authorized." Never mind that the doctors belong to MPNs or Medical Provider Networks and have already been approved by the insurance company. In many cases patients are kept in pain because the treatment they're seeking -- and that has been properly prescribed -- is being withheld by the insurance company.

There is an appeal process. If UR doesn't reverse its denial of care in timely fashion based upon an initial complaint by the treating doctor, the decision is passed over to an Independent Medical Review agency which may employ doctors who are out-of-state and whose names are concealed by the insurance companies from the patient and the actual treating doctor. Statistics show that the vast majority of cases denied by UR get denied again by IMR.

Under these circumstances, many physicians including the most prestigious simply refuse to accept industrial or workers comp cases -- injured workers who get injured on the job expect that they'll get authorized treatment from their industrial carriers. Strike one occurs when their access to treatment is delayed. Strike two occurs when UR denies care that had previously only been delayed. Strike three occurs when IMR goes along with UR and gangs up to deny care again. There's a 4th strike that occurs when the likes of Governor Baker, Governor Brown, and State Senator Lara help insurance companies and corporate interests shirk their obligations to provide timely medical and surgical care. 

Stanford Hospital and Clinics knows what to do. In a letter to a California physician, July 24, 2014, Stanford refused to provide neurosurgery consultation to an injured worker. The letter from Stanford gave the following reason: "We don't take WC cases."

Is SB 1429 (Steinberg) an aborted last ditch effort to settle medical malpractice liability ...

... or a possible vehicle for Gut and Amend at the end of the scheduled legislative session?    

In a nutshell, our opinion as of 28 April 2014 is that SB 1429 is almost dead in the water -- that's why we didn't discuss it in our previous article (RANDOM DRUG TESTING FOR LAWYERS: WHEN SHOULD LAWYERS BE DRUG TESTED?, 4/24/14)  about involuntary drug testing for lawyers. As matters stand now, the trial lawyers have committed their efforts to the initiative which has as its primary goal more money for lawyers who successfully prosecute malpractice cases. The initiative  would also impose random drug testing for doctors and require doctors to use a statewide data base when prescribing narcotic medication.

Steinberg's bill is less ambitious. His idea is to gather the parties together to work out a strategy that would be mutually satisfactory. Reasonable, you say? Not exactly because the lawyers aren't looking for a compromise on nickels and dimes and the doctors are dismayed about how much they already pay for malpractice insurance. Hence, a small increase in settlements as might be expected if non-economic damages were increased slightly or indexed for inflation doesn't interest the lawyers who, by the way, rejected a cost-of-living adjustment several years ago. Any increase in malpractice premiums doesn't sit well with the doctors whose incomes have been eroded over the last few years as managed care plans, HMOs, PPOs, and Covered California take over.

As for the statewide data base called CURES, just try to use it. Usually their phones if they have more than one go unanswered or the caller does not get the information requested. We've been advised that the database is underfunded and can't get the coverage it needs. So one of the first services to cut was knowledgeable persons answering phones.

It looks like both sides have stepped away from SB 1429, but, in theory, that could change under the proper circumstances. That would imply mutual  cooperation which at the moment does not appear likely in California's  House of Cards. SB 1429 lurks in the corner, a candidate for Gut and Amend.

Late Flash: the trial lawyers' initiative has now been designated Proposition 46 while the campaign against it will be known as the No on 46 Campaign. We will support No on 46 and advise our readers to do the same.