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Wednesday, May 30, 2018

Defense Warns Holding UR Docs Liable for Malpractice Will Endanger Exclusive Remedy

  • By Elaine Goodman
  • State: California
  • Topic: Top
  • - Popular with: Legal
  • -  16 shares
Sometimes things go wrong in workers’ comp, but that’s no reason to abandon the system&r…

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9 Comments (6 Replies)

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Anne Bazel May 30, 2018 a 1:05 am PDT

UR doctor has control of medical treatment just as PTP. He definitely cares responsibility for patient’s care just like PTP. All those arguments about exclusive remedy and limited function is just an excuse. Medical Board has taken position on this matter long time ago, which is the body governing medical practice law in CA. UR physician cares responsibility just like any treating physician.

Brad Wixen May 30, 2018 a 7:05 am PDT

Malpractice had always been compensable as a separate 3rd party tort. I understand the concern for the floodgates. But the article seems strangely silent on the concern for the worker to receive competent medical advice. It all boils down to duty and whether there is any.

Jun 2, 2018 a 11:06 pm PDT

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Jun 2, 2018 a 11:06 pm PDT

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Jun 2, 2018 a 11:06 pm PDT

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May 30, 2018 a 2:03 pm PDT

So then the State of California, by way of its use of proxy Maximus, can also be sued for a negligent IMR? Very slippery slope.

Brad Wixen May 30, 2018 a 7:05 am PDT

Malpractice had always been compensable as a separate 3rd party tort. I understand the concern for the floodgates. But the article seems strangely silent on the concern for the worker to receive competent medical advice. It all boils down to duty and whether there is any.

Jun 2, 2018 a 11:06 pm PDT

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Jun 2, 2018 a 11:06 pm PDT

[deleted]

Jun 2, 2018 a 11:06 pm PDT

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May 30, 2018 a 5:07 pm PDT

Looking at this from a historical perspective, the exclusive remedy was given to employers as a result of a “bargain” in which employees gave up their constitutional right to a civil lawsuit in exchange for medical treatment and compensation for an industrial injury. In my opinion, if a physician chosen by an insurer prescribes treatment for an accepted industrial injury, denial of that treatment constitutes a breach of the “bargain.” Therefore, the exclusive remedy should no longer apply.

Brad Wixen May 30, 2018 a 7:05 am PDT

Malpractice had always been compensable as a separate 3rd party tort. I understand the concern for the floodgates. But the article seems strangely silent on the concern for the worker to receive competent medical advice. It all boils down to duty and whether there is any.

Jun 2, 2018 a 11:06 pm PDT

[deleted]

Jun 2, 2018 a 11:06 pm PDT

[deleted]

Jun 2, 2018 a 11:06 pm PDT

[deleted]

Arsineh Arakel May 30, 2018 a 8:05 am PDT

A decision to stop medication is medical advice. The UR physicians decision to stop the medication directs the current course of pharmacological care as it did in the case at bar causing tortious ramifications. The purpose of the physician review is precisely to use the physicians expertise, practical training, knowledge, background and clinical experience, in rendering that medical advice /decision. A UR physicians duties should not be absolved or protected by the shield of the exclusive remedy doctrine drawing a blind eye to the hypocrathic oath, malpractice laws and permitting unfathomable and untethered reign over a patient’s health. Carving out protections for the level of care expected and required from physicians ensures the UR physician’s limitless ability to cause negligently harm without true recourse.

Randy Bugg May 30, 2018 a 9:05 am PDT

While there may be some merit here to this case, I believe there are too many unknowns for me to snap to judgement. Has anyone commenting had the opportunity to read the UR determination, containing the reasoning for the non-certification? My experience has been that many PTP's do very little to participate in the UR process and when they do, the results are generally better than in the present case. Does anyone know if there was any peer to peer contact? Could be a bad UR; could be a bad PTP. Again, there is much more information to consider that what is being outlined in the article. I'm currently neutral on the matter.

Dr May 30, 2018 a 10:05 am PDT

Utilization Review (UR) doctors influence medical treatment, even stopping indicated and correct treatment as in King v CompPartners. They get away with it by relying on a legal theory called the "exclusive remedy provision" which the insurance companies (non mirabile dictu) use to justify abandonment of the "duty of care." That may be clever lawyering but it is hypocritical and facilitates the malpractice we see in this case. The Medical Board has already filed its statement that UR is the practice of medicine. We are not surprised, only disappointed, that the insurance companies are hell bent on supporting a thinly veiled legal theory to enable abandonment of the 'duty of care." See my column, workcompcentral, 2018-05-24.

-- Robert L. Weinmann, MD, Editor, The Weinmann Report (www.politicsofhealthcare.com)

Kathleen Dixon Jun 2, 2018 a 11:06 pm PDT

Perhaps we should be aware of the UR doctor's credibility. Every UR Denial I receive is from a UR Dr. not qualified to be in his position. A UR Dr: Must be actively practicing medicine. He must have a current license to practice medicine in CA His address must not be a residence or a PO Box He shall not be retired. He must have a phone contact number during business hrs. The URO shall chose a UR Dr. with knowledge in the area of the PTP's RFA. My PTP's requests should go to a Neurosurgeon. I am always denied care from a Physical/Rehabilitation Medicine UR Dr. The progress notes forwarded to UR are chosen by the URO, not the Claim's Adjusters. My last denial listed 3 reports from 2018--none from 2017. There was no mention of 2 fusion surgeries 20 yrs ago or 5 episodes of LOC and FALLS causing serious fractures in 2015 & 16. That IW's contract for FMC was breached and is a worthless piece of paper deeply saddens me. RN, BSN, NP, MICN, Preceptor

Kathleen Dixon Jun 2, 2018 a 11:06 pm PDT

The Ins. Fraud's Protection Act trumps the WC Act and removes the protective umbrella of the "exclusive remedy."

Ron Perelman May 30, 2018 a 5:05 pm PDT

Exclusive remedy is part of "the great compromise". The injured worker is entitled to the presumption of liability liberally.He cannot sue for tort pain and suffering, because of this. That is all. It does not apply to malpractice. Good medical care is assumed. If not and a doctor is negligent in the WC system, he can be sued. UR doctors decide on a patient's treatment. It is not just advice. It is binding. IMR is basically the same, but the evaluator is anonymous, and the decision is final for a year. Given that degree of control, one cannot escape the conclusion that the UR/IMR doctor controls a patient's care and is definitely involved in the doctor-patient relationship. Once that is established, and there is negligence, a patient has the right to compensation, if he is damaged as the result of this negligence. This is a very important case and could change the way we treat patients

May 31, 2018 a 1:05 pm PDT

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Jim Heaney Jun 2, 2018 a 9:06 am PDT

Wow. This article caused more comments than I Have seen in a long time. As someone who has a little experience with bogus UR, I am not surprised by this case and the arguments. UR for the most part is just a weapon. Sometimes abused rarely not.

Look at this case. Where State Comp set a written policy and then paid their UR provider. EK Health to carry it out.

http://news.workcompacademy.com/2018/EK_Health/EK_Health_15_CV_08061_16_Third_Amended_Complaint.pdf

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