Weinmann: UR Physicians Do Not Owe Injured Workers 'Duty of Care'

Tuesday, September 18, 2018 | 0

That utilization review physicians do not owe a duty of care to injured workers can reasonably be deduced from the recent California Supreme Court decision that trashed Kirk King's tort claim over an incorrect and harmful UR decision.

Dr. Robert Weinmann

In a nutshell, King sustained back injury in 2008 that led to chronic pain associated with depression. Klonopin was prescribed by his treating physicians, who interviewed and examined him. He did well on this medicine for two years.

That's when Dr. Naresh Sharma decided without interviewing or examining the patient that the klonopin was not medically necessary. The hitherto authorized medication was then summarily discontinued. The sudden withdrawal of medication led to King's having four seizures. 

King and family asserted that Sharma and his utilization review organization employer had acted negligently, and since Sharma was working for the URO known as CompPartners, both deserved to be disciplined and sued.

Not so, said the court. Hiding behind the mantle of law, the justices totally ignored the patient's plight. Their ruling side-stepped the tort issue and said instead that the exclusive remedy for this type of dispute is entirely within the purview of the utilization review process.

Too bad for King. All the better for the corporate interests, and the employers that control and operate UROs.

On the other hand, the court noted that the utilization review process may not be working as it should — an open invitation for new legislation.

Justice Mariano-Florentino Cuellar was quoted in WorkCompCentral by Greg Jones as saying that protections for injured workers "may not be set at optimal levels and the Legislature may find it makes sense to change them" -— another open invitation for new legislation to revisit the authority of utilization reviewers and their UROs. 

Changes should be introduced for legislation in 2019.

Using gut-and-amend techniques as mentioned in our previous column on Senate Bill 790 is one way these changes can be made. We would, of course, expect employers to suffer their own seizures at the thought of it. 

Here's our big five of recommended changes: 

1. UR doctors should be obliged to carry the same duty of care that is now borne by treating doctors. 
2. UR doctors should be licensed in the states in which they provide UR opinions and should be subject to that state's medical board for discipline, just as treating physicians already are.
3. UR doctors should be obliged to interview and examine their patients.
4. Employers should be penalized if they allow treatment to be altered or terminated before a replacement care plan has been approved by the treating physician(s). Actually, there already is such a provision; only in the Kirk case it is usually ignored. This example shows how laws without teeth can safely be ignored. 
5. Wrongful and/or harmful UR decisions should increase the injured worker's disability payments.

Dr. Robert Weinmann writes the Politics of Healthcare blog, from which this entry was taken with permission.