Weinmann: Malpractice Reform Reaches California Supreme Court

Wednesday, January 4, 2017 | 0

The late and illustrious David J. DePaolo was on target in "Out of State UR — I Don't Understand," published Jan 4, 2013, when he wondered why it should make any difference whether utilization review physicians were in-state residents or not.

Robert Weinmann

He summarized my own argument at the time by quoting the following: "Because reviewing doctors out of state can't be controlled by California licensing authorities, insurance companies are then free to 'scour the country' for doctors who are willing to give favorable reviews to insurers."

My conclusion at the time, and still is, is that "in-state licensure should be required, not in-state residency."

The entire issue has now hit the proverbial fan. UR is now before the California Supreme Court. Fourteen (and counting) organizations have asked to file amicus curiae briefs. All of them focus on a combination of clinical matters and legal issues over which looms the specter of money.

The case at issue is  King v. CompPartners. In January 2016, the 4th District Court of Appeal issued a ruling that UR physicians have an obligation to apply ordinary care and diligence in their provision of medical opinions, with reference to the reasonableness of treatment for injured workers. The clinical issue had to do with the sudden discontinuation of Klonopin without having taken due regard of risks — namely, that abrupt discontinuation of this medication is associated with epileptic seizures.

This unfortunate situation befell Kirk King when the UR physician reviewing his treatment recommendation in turn advised discontinuation of the medication. The clinical argument is that the UR physician assumed responsibility for the patient when he made a recommendation that directly contradicted the treating doctor's treatment plan and thereby harmed the patient.

One of the organizations filing an amicus curiae brief is the California Applicants' Attorneys Association (CAAA). Its argument is that King is simply asserting his "common-law right to bring a lawsuit against someone ... who may have caused injury."

In this writer's opinion, that is precisely what the UR physician did when the insurance company adopted his fallacious opinion and discontinued an indicated and necessary medication.

Not surprisingly, organizations that provide UR physicians are up to their necks in legal riposte.

Coventry and Examworks provide UR physicians. These two organizations, among others, argue that UR doctors play only limited roles and as such should not be exposed to malpractice liability. They have the effrontery to argue that UR doctors do not interview or examine the patients, so they shouldn't be held to the same clinical standard as treating physicians.

They don't remind us about the corporate interests that supported SB 863, which established the misguided public policy allowing legal largesse to UR physicians and their independent medical review counterparts. UR and IMR physicians are not required by law to be licensed in California although both are allowed under SB 863 to provide treatment directives such as the one that discontinued Kirk King's medication and brought the current case to the California Supreme Court.

There is history on this matter that turns out to have been prescient, maybe even predictive.

In "Malpractice by Utilization Review?" (The Weinmann Report, www.politicsofhealthcare.com, Dec. 13, 2014), this author described a case wherein Lyrica was improperly suspended from an injured worker who had had a three-level cervical fusion (the medication was eventually restored by a California licensed physician). This case and the King case have in common that the UR physicians asserted clinical opinions that harmed the lives of patients dependent upon them for good faith judgments. I understand this argument to be the crux of the case being brought by Attorneys Law, Falcioni and Lockwood on behalf of King.

In "Utilization Review Hypocrisy in Velvet Gloves" (WorkCompCentral.com, March 26, 2014), we pointed out more reason why the defective UR program should be replaced.

Finally, we mention again that former Medical Board of California (MBC) president Dr. Frantozzi long ago submitted an opinion that UR is an aspect of medical practice and that UR physicians should be licensed in California. The underlying fault is inherent in SB 863, which provides the legal basis that allowed for the wrongful discontinuation of Lyrica in the case of the patient with the three-level cervical fusion, and Klonopin in the case of Kirk King.  

King's case should be sustained by the California Supreme Court. SB 863 should be repealed. The two situations are analogous: Without SB 863, the cavalier determinations by  the UR doctors vis-a-vis one patient's Lyrica and another patient's Klonopin would not have taken place.

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