ACOEM, Standard of Care and Malpractice

Sunday, November 20, 2005 | 0

The following is a dialogue that recently occurred in the WorkCompCentral Professional's Forum, UR, MPN & ACOEM TOPICS. It has been reproduced here, with minor editing for readability and grammar, due to the timeliness of the debate, and the issues raised.

POST: This topic is one that was touched on in another thread that I have been discussing with many doctors and attorneys since the inception of UR and MPNs.

The ACOEM guidelines are just that 'guidelines' In addition, they are national guidelines. However, for purposes of malpractice a physician is held to the standard of care in the community, i.e., to a reasonable medical probability was the care provided to the patient below the standard of care in the (Los Angeles, San Francisco, San Diego) community.

In a deposition I had with a very well respected MD, I asked him if he was familiar with the ACOEM guidelines for the treatment of shoulder injuries. Naturally he was. I then asked him if in our particular case any of the guidelines for treatment laid out in ACOEM were to a reasonable degree of medical probability below our community's standard of care. The answer was a resounding 'Yes'. (Abbreviated for purposes of this discussion.)

It is obvious that guidelines are generally geared to the typical situation in the typical community. This would mean gearing the treatment for what would be appropriate in New York City as well as Fort Haze, Kansas. Unfortunately my doctors are not held to that same standard.

I would expect that is in part why so many doctors are leaving WC. More work in dealing with UR denials, less money under the new official medical fee schedule and more potential liability for malpractice claims.

Also, what happens if you do not have the typical shoulder injury and the physician is in the MPN? Can the physician risk providing the treatment on a lien basis and attempt to collect from the carrier that was kind enough to put him/her on the MPN? Would the physician take the chance of being kicked off the MPN if she/he did this a few too many times? How does the physician balance the very real fact that he/she needs the fees generated from the MPNs to survive with the best medical needs of the patient as well as potential liability for malpractice for simply following the UR denials based on ACOEM guidelines which maybe below the community standards of care?

Does anybody know how physicians are handling this? And how are physicians advising their patients in this situation?

POST: You have hit the proverbial nail on the head. My view is that the docs who will be in the MPNs are just hiding their head in the sand --- and counting on the high threshold, as well as substantial expense, necessary to prove up a med-mal claim.

What these docs are not seeing is: (1) the expense the doctor will incur for the deductible, and (2) the fact that if numerous med-mal claims are filed in a short period of time, the med-mal carrier will drop them as an insured --- thus resulting in being kicked out of the MPN for a lack of med-mal coverage.

Will the MPN docs seek authorization for a course of treatment or diagnostic testing that is inconsistent with ACOEM and risk being "economically profiled" out of the MPN --- or will they blindly follow the treatment regimen they are handcuffed to, ACOEM, and risk a med-mal claim --- that is the million dollar question, and one that will be answered on a case-by-case basis.

However, if a number of MPN docs are selected to be the recipient of med-mal claims, you can count on the word spreading around much like a wildfire fueled by high winds and low humidity --- and the result just might be a high drop-out rate from the MPNs, resulting in an insufficient number of physicians to comply with the numerical/distance standards necessary to compose an AD approved MPN.

If a high enough number of docs drop out of an MPN, either as a result of med-mal claims filed --- or out of fear that by blindly following ACOEM the doc is risking his license to practice --- and the AD decertifies that MPN, that news will be on the front page and will get other MPN docs to start thinking about whether they want to continue providing assembly-line treatment for reimbursement at Medicare plus 20%.

The line from the 'Laurel and Hardey' series is appropriate: "This is a fine mess you've got us into, Ollie."

POST:

This is slightly divergent but along the same lines as this thread...

Doc is new to MPN and is referred case where injury is accepted for some parts and denied for other parts. IW not yet seen. Doc has been authorized as MPN PTP by IC only for accepted parts. AA is asking that doc examine, discuss causation and treat all parts doc feels are related regardless of acceptance.

What is MPN PTPs responsibility for unaccepted but claimed areas of injury? - What if pt is unrepresented - Does this change anything?

If MPN PTP finds parts not yet accepted as being related to injury -
- Does he treat them?
- Does he treat them only if authorized by IC?
- If IC does not authorize tx to all areas doc feels are related and doc txs anyway, will doc be paid for tx? - if not does doc file a lein?
- If IC does not authorize tx to all areas doc feels are related and doc does not tx, will he risk malpractice claims?

POST: LC 4061.5 indicates the PTP is to determine issues of "compensation". Thus, if the AA/IW has filed for other types of injury outside the PTP's field, then the PTP should refer out to get a consult and "incorporate" the findings into his/her own report addressing causation.

This has been one of the most frustrating issues as an adjuster I've been running into, getting the MPN Dr's, whom a large majority are GP's from Occ. Med. clinics, to comment on causation and do more than just checking box #21 on Form 5021. They are either not aware of the new requirements and/or just don't have time to complete a narrative on each new claimant they see.

POST: So your understanding is that the PTP in the MPN is to determine causation of claimed but not yet accepted areas of injury.

My query was not so much regarding areas outside the doc's specialty, but where the IA specifically states IC accepts these areas - say neck and shoulder, authorizing treatment as needed (per UR), but denies back and knee with no authorization to treat back and knee - and the PTP examines and determines there is a reasonable medical causation for all four areas, given the accepted mechanism of injury?

Can the PTP treat in the face of the IA denial of authorization and expect to be paid?

POST: This example proves the point of my thread. Under L.C. 4061.5 and Board Rule 9785(d) a PTP "shall render opinions on all medical issues necessary to determine the employee's eligibility for compensation" in the manner provided by law.

Therefore, the PTP MUST provide a report addressing this. If not, a good applicant's attorney is going to either:
(1) argue the report is not admissible and incomplete.
(2) write a letter requesting this information from the PTP and if not provided use the provisions of 9786 to change treaters to someone outside of the MPN (big battle brewing there).
(3) if no report argue that the PTP violated not only his ethical and legal duties to the patient but the Labor Code and sue the PTP for malpractice.
(4) if PTP provides a report indicating compensability but carrier does not authorize treatment, possibly sue the PTP for malpractice as his/her duties to the patient are in addition to and perhaps superside the PTP's duties to the Labor Code and the MPN/Carrier.

In short as the old biblical saying goes - a servant cannot have two masters - they can only answer to one. So which one will the PTPs answer too? I fear it will be to the one that writes the check. If so, you will see reports addressing the disputed issues and finding in favor of the carrier (check writer) even if that means writing a report with tortured logic to get the 'right' finding. But this also may lead to a malpractice claim against the company doctor.

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