MALPRACTICE BY UTILIZATION REVIEW?

MALPRACTICE CASE STORY IN PROGRESS

Here's the story we're working on right now: a Utilization Review physician with a California license is being challenged for a decision that is reported to have resulted in harm to a patient. As we go to press, here's what we know: 

1) Patient X sustained brain and spinal cord injury in 2001;
2) Patient X had a three-level cervical fusion;
3) Patient X had been on lyrica since 2008; 
4) Patient X reported relief of symptoms;
5) Patient X did not report adverse effects;
6) UR Doctor Y was referred the case for review;
7) As is the custom in these cases, UR Doctor Y did not interview or examine the patient since so doing is not required by California law covering utilization review;
8) As is the custom in these cases, UR Doctor Y reviewed the documents forwarded by the insurance company, three medical reports that purportedly covered the injured worker's 12-year medical and surgical history;
9) At this point one of the allegations against the UR doctor that could also be directed against the insurance company is that a paucity of medical records was reviewed by the doctor and/or submitted by the insurance company;
10) UR Doctor Y submitted a report advising that the dosage of lyrica which had been prescribed for about 6 years be cut in half;
11) This recommended reduction in medication was accepted by the insurance company which then reportedly declined to authorize the next request for medication refill (we do not know at this time if the actual primary treating physician or PTP agreed, acquiesced,  or rewrote the prescription in accordance with the UR recommendation). We also do not know if the PTP filed an appeal;
12) Patient X did poorly with  the reduced medication and experienced adverse effects;
13) In due course, a California licensed physician got the original dosage restored;
14) Patient X sustained adverse effects that were short-lived and reversed once the original dosage was restored;
15) Patient X now has a lawyer who has instituted proceedings to report UR Doctor Y to the Medical Board of California and to initiate a malpractice complaint. 

In summary, although we believe we know more, the facts as stated above can safely be stated with reasonable medical probability.  In previous op-eds, see also my reprints in workcompcentral,  we've pointed out that Dr. Frantozzi as president of the MBC submitted a letter stating that UR was part of the practice of medicine and required a California medical license -- in this case, the offending UR doctor does in fact have a California medical license which is why the MBC retains jurisdiction in this case. In other cases where the UR doctor does not have a California medical license, there would be no sense in even submitting this complaint to the MBC. Malpractice litigation would be the only choice. In this case, it appears that both options are open. We'll follow up when we know more, Stay tuned. 

MORE, A LITTLE MORE, IS HEREWITH REPORTED: repeal of SB 863 is indicated. 

If you stayed tuned as requested, here's the next bits of information we've gleaned about this patient's plight. The PTP in this case reportedly filed an updated RFA which dutifully got referred back to Utilization Review. A different UR doctor than the one who nixed the original prescription then opined in favor of the original lyrica prescription. The medication was then re-authorized. We're also advised that the Medical Board has now been advised about this case and has been asked to comment on it.  This method of medical practice owes its existence to SB 863. The solution is repeal of SB 863.  Stay tuned, this fight has just begun. 

References

"Medical Board Asserts Jurisdiction Over Utilization Review," workcompcentral.com, by Greg Jones, 2013-06-12;

"Utilization Review Hypocrisy in Velvet Gloves," workcompcentral.com, by Robert Weinmann, MD, 2014-03-26;

"Is Utilization Review in the Cards for 2015?" workcompcentral.com, by Robert Weinmann, MD, 2014-12-03.

EVIDENCE BASED MEDICINE (EBM) is the new mantra in health care. In its own way, AB 1687 (Fong) is a call for application of  EBM which is supposed to be the basis for Utilization Review (UR) in workers' compensation in California, for management-based authorizations in the nation's HMOs and PPOs, in Medicare, in Medicaid, and for managed care decisions everywhere and anywhere. All the same, proponents of EBM are aware of  high levels of sophisticated hypocrisy that engulf the EBM concept and that may ultimately contribute to its demise.

In California the most recent example revolves about AB 1687 (Fong) which would authorize attorney fees when injured workers who have been awarded future medical care successfully appeal UR decisions that deny prescribed care. AB 1687 has recently been studied in Assembly Appropriations.

Julie Salley-Gray, consultant to the committee, said, according to workcompcentral (WCC, see references below), that the bill will have minimal fiscal impact because challenges to UR denials are relatively infrequent. She is on record as having said that only 6% to 20% of UR requests are denied -- we are advised that her figures come from the California Professional Firefighters  (CPF) who are the sponsors of AB 1687 and who, in turn, got the information from the Division of Workers Compensation (DWC).

Workcompcentral stated in its release of 5/21/12 that the lobbyist for CPF did not return calls asking who in DWC provided this information. Previously, when Politicsofhealthcare.com sought information from this source, we also found that CPF did not return calls or e-mail.  However, workcompcentral also said that Carroll Wills, Communication Director for CPF, attributed the information to Rosa Moran, Administrative Director for DWC. The quote from Moran, however, was not exactly one that imbued readers with confidence, e.g., "I can't speak to when the data was generated, we got the figure from the AD (administative director) this spring and understand it to be current."

This level of response appears casual and not consistent with the high levels of data that insurance companies and their utilization review cohorts exert on doctors to support the medications they prescribe, the diagnostic tests they ask for, and the treatments and surgeries they recommend.

Workcompcentral also queried DWC spokesman Peter Melton whose reply by e-mail to WCC said that DWC does not keep track of UR statistics. Now we appear to gone from debatable EBM statistics to none at all. How is that possible? Reference is then made to a CHSWC lien report that said that treatment authorizations were "in dispute in 70% of liens surveyed." We are also told that the reasons for treatment denials were unknown in 20% of cases. We are then informed that Erika Monterozza, spokeswoman for the Department of Industrial Relations (DIR), stated that she couldn't confirm or deny whether DWC provided the information or not. We do not know if anybody asked whether or not any of the data reported turned out to be incorrect or distorted.

Mark Rakich, consultant to the Assembly Insurance Committee, was reported to have stated that the fiscal effects of the bill would include "potentially minor increases of workers' compensation insurance due to the added costs  associated with the relatively few challenges to the relatively few denials."  The trouble is we no longer can tell whether or not the number of challenges is "relatively few" or not.

What we do know is that Gov. Schwarzenegger squandered some of his panache with the new PDRS in 2005 which slashed PD benefits. Treating doctors also know that injured workers are often left stranded and that their PTPs (primary treating physicians) are left holding the malpractice bag when recommened and prescribed procedures and treatments are denied by UR companies which claim to rely on ACOEM or MTUS protocols which in turn claim to be based on EBM.

At this point Mark Gerlach, consultant to the California Applicants' Attorneys Association, hit the nail on the head when he stated that it is important to know the sources for the data in support of the 6% to 20% denial rate that was included in the Appropriations Committee Bill analysis.

Conclusion

Stakeholders, patients most of all, need to know in clear and concise language how EBM is used to authorize, delay, or deny treatment. Stakeholders also need to know if and how DIR and DWC use this information and to what extent its use has become an industry tool that insurance companies and their compliant utilization review companies wield to reduce healthcare expenditures at the expense of injured workers.

In response to queries about how EBM and AB 1687 intertwine, here's our answer: AB 1687 is a step in the right direction because its implementation will enhance impartial application of EBM.