Is SB 863 an Example of Legislative Malpractice?

In our previous op-ed we discussed malpractice by Utilization Review doctors, namely, which ones were eligible for discipline from the Medical Board of California (MBC) and which ones were able to skedaddle from underneath this potentially onerous obligation. In a nutshell, UR doctors not licensed in California are allowed substantially more leeway than their properly licensed counterparts -- they can deny, modify, or approve care to California's injured workers without being subject to sanctions for unprofessional conduct from the MBC when their incorrect decisions are harmful to injured workers. 

We then discussed  the special relief that's granted to Independent Medical Review (IMR)  doctors such as those used by Maximus. While many of these IMR doctors may be licensed in California, many are not. Physicians do not need to be licensed in California to do IMR thanks to SB 863 which grants at least two levels of protection to this favored class. First, the IMR doctor does not have to be licensed in California. Second, the IMR doctor gets to be anonymous, not unlike the situation in pre-revolutionary France where nobles were allowed to file secret complaints called "lettres de cachet" -- these accusations put hapless defendants into prison. The unlucky defendant was not told the name of his accuser. 

Our editorial entitled "Malpractice by Utilization Review?" has been reprinted on other websites, e.g.,  workcompcentral, California Neurology Society, and has come to the attention of the California Applicants' Attorneys Association (CAAA).  We call your attention to comments that have been submitted to workcompcentral, in particular, one from an orthopedic patient who said "I too am thinking about going to the CA medical board on a UR doctor."

This patient said he was made to "suffer for close to 5 weeks with the headaches that comes with spinal fluid leaks." These situations point out why SB 863 needs to be substantially modified or repealed.

Physicians know that utilization review occurs in diverse forms and isn't limited to workers comp or injured workers -- it's used for managed care of all kinds and for Medicare and Medicaid.

It appears that SB 863 has provided a safe-haven for malpractice protection for UR doctors and their 80% supportive IMR colleagues. It appears that one can argue with reasonable medical probability that SB 863 itself reflects legislative malpractice and has earned the right to be repealed. 

Interested parties are referred to additional specific references (see  below):

"Applicants' Attorneys Pan DWC's Rosy View of Independent Medical Review," by Greg Jones, Workcompcentral, 12/19/14;

"Maximus Upheld Denial of Treatment Four-Fifths of the Time," by Greg Jones, Workcompcentral, 12/16/14;

"Labor's Comp Expert Stepped on Toes to Make Reform," Workcompcentral, 12/10/14;

"Continuing Hope for Reinstatement of the Lien Activation Fee," Melissa LeBlanc, Workcompcental, 12/22/14.

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.

RANDOM DRUG TESTING FOR LAWYERS

WHEN SHOULD LAWYERS BE DRUG TESTED?

The correct answer is when they are awake and can give consent. The next question is why aren't they already tested when they go to court especially when they represent known felons, drug traffickers, or persons indicted for murder? The correct answer is because lawyers write laws to suit themselves.

A medical tech who was reportedly addicted to drugs and who stole fentanyl that was expected to be used for patients awaiting cardiac surgery caused the death of two patients and got a few dozen others infected with hepatitis C when he altered the contents of their syringes, stole the fentanyl and replaced it with saline that turned out to be infected. That bloke is now doing 39 years in prison. As this man drifted from job to job, protected from having to reveal his erratic job history, he was protected by law. Wrongful administration of fentanyl was also associated with Michael Jackson's death. This time the culprit was a physician. Now comes an effort to correct this situation, an effort, we believe that is steeped in hypocrisy and swimming in money. 

In California we expect the Troy and Alana Pack Patient Safety Act to qualify for the initiative process. The goal is to alter MICRA's (Medical Injury Compensation Reform Act) $250,000 ceiling cap on non-economic damages so that malpractice lawsuits become more lucrative for trial lawyers. So far CAPP (Californians Allied for Patient Protection) have thwarted the trial lawyer's goal. Proponents point out that there is currently no law that requires doctors to take random drug tests. They don't mention that there is also no law that requires lawyers to take random drug tests. Proponents argue that surgeons don't have to be tested randomly before operations but imply that that should be done. The same proponents don't mention that lawyers who are trying to put someone to death or save someone from the hangman's noose are also not tested. Why not? Both the surgeon and the trial lawyer are involved in death-struggles although, truth be told, it's the lawyers who as prosecutors are allowed to strive to put someone to death and may win kudos for so doing. But now the lawyers, especially those whose specialty is malpractice, want to impose random testing on doctors while continuing to exempt themselves. The idea, they say, is to stop the abusive overprescribing that in the case of 10 year old Troy and his 7 year old sister, Alana, was linked to their being killed by a drugged driver who had overdosed on prescription medication.

Trouble is that this noble concept has been hijacked by the trial attorneys who for years have been trying to increase malpractice liability in the hopes of higher payouts and better paydays for themselves. A recent study by the Berkeley Research Group reported declining malpractice claims and lower awards. This trend would be turned around were the Troy and Alana Pack Safety Act enacted into law -- one estimate is that attorneys would win about $127,500 more on average than they do now were the initiative to succeed. That explains why the ballot summary for this initiative conceals the initiative's true purpose, not patient protection, but lawyer enrichment.

So why not amend the Troy and Alana Pack Safety Act so that it also includes lawyers, e.g., random drug testing for any lawyer within a few hours of a scheduled court appearance, or anytime a lawyer is arguing a death penalty case? Lawyers, from time to time, steal from client's trust funds, sometimes to support drug habits, so why not also test lawyers randomly?

Sometimes lawyers miss statutes of limitations. Test all of them who do that. Sometimes lawyers create false documents or prosecutors fail to turn over exculpatory data to defendants. Test all of them, too. In cases where a wrongful prosecution has led to wrongful imprisonment, why not skip the drug testing and have the prosecutor finish up the sentence that was wrongfully imposed on the hapless defendant? Some lawyers, some doctors, and even some judges benefit from loopholes in the system.

If we plug these loopholes by amending the Troy and Alana Pack Safety Act, then, just maybe, with a level playing field, the proponents would improve their credibility with the public. At the moment, the initiative is tilted more to trial lawyers' enrichment than to anybody's safety.

Late flash: the trial lawyers' initiative to award themselves increased malpractice payments has been designated Proposition 46 while the campaign against it, which we support, will be known as the No on 46 Campaign.