DO DOCTORS EXPIRE IN 10 YEARS?

"Do doctors expire in 10 years" is the title of the lead article in AAPS news from the Association of American Physicians and Surgeons, Vol. 70, No. 5, May 2014. Our readers may enjoy comparing this piece with items from The Weinmann Report, www.politicsofhealthcare.com, "How Physicians Eat their Young," 12 Feb 2014 and "Money and Medicine," 21 July 2012.

The subject is recertification and reveals how boards, associations, and other organizations may use Maintenance of Certification (MOC) to enrich themselves and their organizational coffers at the expense of their own members. The AAPS poses this theoretical question: if "one day a highly trained, experienced physician may be board certified -- and the next day, after examination results are revealed or a deadline for MOC compliance passes, he may be decertified and unemployable. In that one day, could he have become demented, or fallen behind in keeping up with this field?"

The article points out that "resolutions against MOC have been enacted recently by the American Medical Association and the state medical societies of New Jersey, Michigan, Ohio, Oklahoma, New York, and North Carolina."

In the same issue, Larry Huntoon, MD, PhD, points out that the American Academy  of Neurology (AAN) was to feature an MOC International Session but did not feel required to file a conflict-of-interest disclosure from Lois Margaret Nora, MD, CEO of ABMS. In 2012 Nora earned about $330,000 in compensation from ABMS and associated organizations according to the ABMS form 990."

AAN reportedly told AAPS that no such disclosure was necessary because AAN did not give CME credits for attendance at this session.

Once again we see an assault on physician autonomy, this time from within, from persons who benefit financially by imposing MOC requirements on hapless physicians whose evolving practices may not meet the confinements of MOC predators.

Additional References

Journal of American Physicians and Dentists, V. 18, # 3, Fall, 2013, "Maintenance of Certification (MOC) : the elite Agenda for Medicine," Christman, Kenneth, "the elite medical establishment correctly foresaw that there as a huge treasure in the medical certification  business").

Journal of American Physicians and Dentists, V. 16, #2, Summer, 2011, "Board Certification -- a Malignant Growth," Dubravic, Martin, MD.

OPPOSE AB 1886 (EGGMAN) UNLESS AMENDED

AB 1886 (Eggman) cleared committee today by 9 to 4. Organizations that should have spotted it as a dangerous bill were silent except for the Union of American Physicians and Dentists and the California Medical Association which were opposed. The UAPD states that "this bill would remove the requirement that specified information be posted on the Internet for a period of 10 years thereby requiring that information to be posted indefinitely." For doctors who've committed minor infractions such as being late with reporting requirements this legislation could be a life sentence, e.g., MPNs may very well reject applications of doctors who are listed even for such minor offenses as late reporting. Such doctors run the risk of  lifetime bans. We doubt that the proponents of the bill intend this consequence -- but there it is.

Under current law according to the  Medical Practice Act the Medical Board of California is obliged to post certain information such as malpractice awards on the Internet for 10 years. Once this requirement is gone, such information could be posted indefinitely, effectively a life sentence. The bill should be opposed unless amended.  

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.

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.
 

UTILIZATION REVIEW: HYPOCRISY IN VELVET GLOVES

"OBVIOUS BAD FAITH" in workers comp re injured workers is revealed in this story about how an insurance company denied care without making any attempt to reach the PTP (primary treating physician) before issuing a decision. We are not stating the patient's name for obvious reasons. We're not stating the name of the insurance company because they all do it so there's no sense in just one taking today's hit. We're not naming the doctor because we don't have permission. But what we do have is full documentation which can eventually be made available. In the meantime, we'll make this story and details known where it may do some good.


SETTING THE SCENE


A  request was made to prescribe hydrocodone, capsaicin, and lidoderm. The insurance company's Utilization Review (UR) doctor reviewed the request and called the prescribing doctor's office at 10 PM. The UR doctor reported later than no one was there to take the call so he left a message. The prescribing doctor asked later whether or not it was reasonable to make such a call at 10 PM and reported also that no message was left. In other words, the UR doc called at an unreasonable time and then faked or lied about having left a message.  


THE BOGUS APPEAL DENIAL


When the PTP became aware of  the denial, an appeal was filed.  The response by the UR doctor came by telephone at 4:34 AM! This second UR doctor said that a message was left because there was no one present to take the 4:34 AM phone call. Once again no message was left, not that calling PTPs at 4 AM should be considered acceptable practice.  


UTILIZATION REVIEW'S STANDARD OF PRACTICE is woefully short on both ethics and knowledgeable practice. In the case at hand the PTP is knowledgeable re the standards of care re managing pain. The UR doctor's response appeared knowledgeable from textbook information but was seriously flawed in its application to the now denied patient. The denial was rammed through without a good faith effort to confer with the PTP. Two UR doctors made phone calls at unreasonable hours and then claimed to have left messages. The PTP doubts the latter assertion. So does this author. Our experience is that UR is repeatedly conducted in bad faith and to the best of our belief with the knowledge and connivance of the insurance companies.


The recent passage of SB 863 allows Independent Medical Review (IMR) to support bad or bogus UR decisions and then deny the patient not only treatment but also his day in court.  Both UR and IMR are sties in the eye of medicine and need strict utilization control themselves. Better yet, both should be repealed.

UTILIZATION REVIEW IN CALIFORNIA WORKERS COMP (PART 2) : more on Jose Dubon vs World Restoration & SCIF

Our posts on workers compensation in California have often stirred up hornets' nests, sometimes only to disclose honey-bees. Here's the latest ruckus:


1)  In our previous post we referred to WCAB's "en banc" decision re Jose Dubon v World Restoration and SCIF as a landmark event and even as a triumph for injured workers.


2) We said WCAB stated that "a UR decision is invalid if it is untimely or suffers from material procedural defects that undermine the integrity of the UR decision."


3) We also pointed out that the WCAB decision said that the UR decision would be invalid only if the defect or defects in its processing of a claim were "material" and that just "technical or immaterial" defects would not cut the mustard.


4) So here's one of the major objections we got from a knowledgeable doctor who does workers comp: "I fail to see what's so great for the injured worker ... nothing has changed ,,, the 'burden of proof' is still on the patient to challenge the UR, which is presumed correct, by  going though IMR/Maximus UR. This just says you're only allowed to challenge ... if they don't file their report (no matter how bogus it is) on  time. Big effin' deal."


5) Maybe  so, but here's the riposte: it has always been the case that the injured worker or his representative had to carry the burden of proof. Since the provider is getting the money and the injured worker is getting access to treatment, who else would be expected to carry the burden of proof? Following the money trail has never been a bad idea. What WCAB has now done undercuts wrongful UR especially by companies known to specialize in wrongful UR by getting UR doctors who aren't licensed in the states in which they provide review or whose specialties are so far removed from the clinical challenge at hand as to make them, or that ought to  make them, irrelevant and disqualifiable on that basis alone.
Here's how UR decisions can be successfully challenged:
(a) you object because you have reason to believe that the UR doctor did not get all the relevant information from the adjuster,
(b) you  object because while you believe the adjuster submitted your information the UR doctor didn't properly review it, and
 (c) for either or both of these reasons you  believe a material breach has occurred. Your problem as a doctor taking care of patients will be how to complain effectively. If the organizations to which you pay dues are not allowed to represent you in terms of denied claims either collectively or on an individual basis, you'll be dependent on the injured worker's lawyer or your own efforts.


Not only that: take notice that SCIF is part of the WCAB decision. To our knowledge, SCIF uses only California-licensed doctors for its own UR. That means that SCIF's UR doctors are subject to the medical board in California whereas non-California licensed doctors favored by some other companies need not worry about anybody's medical board (they're not licensed in California and the medical board of the state in which they're licensed doesn't have jurisdiction in California).


Given the changes introduced by the WCAB decision in "Dubon" the PTP has a better chance of getting a case denied by UR and out of the claws of Maximus and into the hands of WCAB which will allow injured workers' cases to be heard by judges. Given Maximus' record to date, this change is a decided improvement.  It is for these reasons that we believe the case is "landmark." We'll watch with keen interest how doctors use this opening. 

WHEN UTILIZATION REVIEW DECISIONS ARE INVALID: Jose Dubon v World Restoration & SCIF "en banc" decsion

UTILIZATION REVIEW (UR) DECISIONS ARE NOW INVALID IF IT IS SHOWN THAT THE UR DECISION WAS "UNTIMELY" or suffers from material (underlining added) procedural defects "that undermine the integrity of the UR decision." This WCAB decision is "en banc" and also states that "minor technical or immaterial defects are insufficient to invalidate a defendant's UR determination." 


This statement is derived from page two of the Workers Compensation Appeals Board (WCAB) "en banc" decision  for the State of California in Jose Dubon vs World Restoration and State Compensation Insurance Fund (SCIF) filed at San Francisco on 2/27/14.


This "en banc" decision also states that the "issue of timeliness and compliance with statutes and regulations governing UR are legal disputes within the jurisdiction of the WCAB."


Of keen interest is the following additional conclusion by the WCAB: "If a defendant's UR is  found invalid, the issue of medical necessity is not subject to IMR (underlining added) but is to be determined by the WCAB based upon substantial medical evidence, with the employee having the burden of proving the treatment is reasonably required."


Finally, WCAB also states that when UR is provided in a timely and valid manner  the issue of medical necessity shall be resolved through  the IMR process if requested by the employee (editor's note: it is the employee who must make the actual request).


Conclusion:


This decision has major importance for injured workers and their PTPs (primary treating physicians). For injured workers unfairly treated by  the system, this decision is a decided victory; however, there are caveats, e.g., it will not always be easy to decide when wrongful steps reflect  "minor technical or immaterial defects" or "material procedural defects."


Editor's comment: The Achilles' heel in the process is UR where many of the participants are not licensed in California and are not subject to the jurisdiction of this state's medical board or even to the jurisdiction of their own state medical board since the latter board does not have jurisdiction in California. These UR decisions may often be careless in part because they're not subject to public policy review by any state medical board.


Reference


Jose Dubon vs World Restoration and State Compensation Insurance Fund, Case Nos. ADJ 4274323 (ANA 0387677) and ADJ 1601669 (ANA 0388466).