Weinmann: Duty of Care vs. Utilization Review

Tuesday, October 30, 2018 | 0

Worker's Malpractice Action Against UR Doctor Comes to an End is WorkCompCentral's headline for Oct. 12. Get ready to amend that to "All-Out Assault on Duty of Care Now in the Works" unless physicians grab this issue by its proverbial neck.

Dr. Robert Weinmann

The gist of this case (King v. CompPartners) involves the unfortunate abrupt and arbitrary discontinuation of patient Kirk King's klonopin with the even more unfortunate triggering of four epileptic seizures. 

For review, here are the facts: King suffered back injury at work. He was prescribed klonopin to relieve anxiety and depression caused by chronic back pain. In July of 2013, the utilization review physician working for Comp Partners decertified the medication without advance preparation, such as advising the patient, preparing for alternative treatment or warning about sudden withdrawal.

King then had four epileptic seizures. He filed suit based on negligence, malpractice and emotional distress. Defendants demurred, the Superior Court judge sustained the demurrer, the 4th District Court overturned the judge and then the California Supreme Court overturned the District Court by ruling that "the exclusive remedy for disputes arising out of the UR process belongs to the workers comp system."

The case was remanded to the District Court. King was barred from pursuing a tort claim. 

So much for Kirk King and his seizures, right? Maybe not. 

Although the ruling appears to establish that the alleged malpractice was protected by law and is unassailable in the courts, there's a caveat, one that could be a game-changer: Justice Mariano-Florentino Cuellar stated that the protections for injured workers "may not be set at optimal levels, and the Legislature may find it makes sense to change them."

My recommendation is that we challenge legislators to change the law so that utilization review doctors are bound by the same duty of care as treating physicians. It makes no sense that our treating doctors are subject to this level of practice, whereas the UR doctors who may alter their treatment decisions are not. 

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