King v CompPartners May have Profound Consequences in Medical Treatment

Tuesday, January 19, 2016 | 1

In King v. CompPartners, the applicant's use of Klonopin was sent by the insurer to utilization review (UR). The UR doctor concluded that this medication was not industrially medically necessary and the insurer abruptly terminated authorization. It is a known risk factor that sudden cessation can cause seizures. The UR doctor failed to warn the applicant and advise on a course of action to protect him. King suffered seizures and was harmed.

The 4th District Court of Appeals in a Jan. 5 decision held that the UR doctor had a doctor/patient relationship with the applicant and had a duty to warn the applicant under Tarasoff v. Regents of the University of California, 17 Cal 3d 425 (1976), of these consequences and that a cause of action on which the lawsuit is based is not barred by the workers compensation exclusive remedy rule.

What is important to note is how this may change how UR doctors and their malpractice insurers handle UR determinations which will affect the process. 

Because of the doctor/patient relationship, the UR doctor is subject to the jurisdiction of the medical licensing board and disciplinary actions. It must be determined whether rendering an opinion without evaluating the patient face-to-face conforms to the standard of care. A plausible argument can be made that it doesn't.

Malpractice insurers may put pressure on UR doctors which will force them to decline the work or there may emerge some procedure to conduct face-to-face evaluations. Applicant attorneys will argue that a face-to-face evaluation is required because of the doctor/patient relationship and in its absence the determination does not meet substantial evidence requirements under Escobedo v. Marshalls, 70 Cal. Comp. Cases 604 (2005).

Face-to-face evaluations open up other possibilities for the injured worker. Will the injured worker be permitted to tape record the evaluation as long as it is disclosed? What about a deposition of the UR doctor?

The larger question is the duty to warn. That itself presents other scenarios both in a noncertified and in a certified UR decision. It would be wrong to suppose that the duty to warn is limited to noncertified UR determinations. 

The circumstances are almost limitless in the presence or absence of any surgery, medical procedure, or treatment. For example, what warnings should the UR doctor provide in general? If a UR doctor certifies a one-level spinal fusion surgery, is there a duty to warn of instability to other levels? Or should the UR doctor inform the patient that an artificial spinal disk replacement may be preferable to the patient's bone or a cadaver bone? Is there a duty to warn of the side effects and adverse reactions of medication if the medication is authorized or if it is withheld due to noncertification? Or what is the duty to warn of contaminants which are impossible to filter out of blood products used in transfusions?

There will be legal and economic pressure to change UR. Beyond UR, will King be extended to panel qualified medical evaluators (pQMEs) or independent medical review (IMR)?

Charles Clark is a solo practitioner in Pasadena, California, who represents injured workers.