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May
30

King v CompPartners and the Duty of Care

To what extent are utilization reviewers care providers?

That was NOT the central question argued yesterday in the King v CompPartners case before the California Supreme Court.

The case appears straightforward; the plaintiff was prescribed Kolonopin, which was denied after going through the UR and IMR process. When he stopped taking the drug, he suffered several grand mal seizures which led to additional injury. The plaintiffs are arguing the UR physician who wrote the final denial should have authorized or otherwise recommended a gradual withdrawal, as seizures are not uncommon when patients suddenly stop taking Klonopin (Mr King had been taking it for two years).  In the view of the plaintiffs, failing to do that amounted to medical malpractice .

The central legal issue in this case is the exclusive remedy nature of workers’ comp, with the defendant arguing that he cannot be charged with malpractice as the UR determination and related processes took place within the workers’ comp system. While that’s the central issue, it’s not my focus.

Rather, I’m interested in the “duty of care” issue. I’ll leave the exclusive remedy issue to the lawyers; the health of the patient – and who is responsible for that – is what’s important to me.

There’s some pertinent case law in California that speaks to the “duty of care”, a phrase that infers the physician doing the review  is responsible  – to some degree – for the medical treatment and results thereof associated with his/her UR determination. In fact, the first court ruling verified that the UR physician owed the patient a duty of care.

The question seems to be, how broad and deep was the duty owed the patient?

The case went to appeal, and the court asserted that the UR physician did have a duty of care. From my reading, it based that assertion on the court’s view that a UR physician is implicitly acting as a medical provider.

However – and this is where it gets sticky – the duty of care varies depending on the patient’s specific situation.  

There’s a legal and an ethical issue here. First, that “standard” is pretty nebulous, ripe for disagreement and litigation.

Ethically it’s more clear. The UR entity should always consider the implications of its decision, the potential negative health consequences, as well as the narrower workers’ comp medical considerations of relatedness, appropriateness, and causation.

Because at the end of the day, it’s about doing the right thing for the patient.

Here’s where the reality that is California’s work comp screws things up; payers often base their decisions on which UR vendor to use largely on price.  UR is seen as a commodity, a necessary evil, especially in California where medical management costs account for way too much of the claims dollar.

Payers are looking to get the cheapest UR they can, while some providers and their legal/lobbying supporters scream about high administrative expenses, inferring those dollars should be spent on patients.

What does this mean for you?

What patients need is careful, thorough UR by physicians with the time and training to foresee and speak to potential consequences of their determinations. And that costs money.

Both payers and their adversaries would be well served to acknowledge that fact.

Note – I haven’t read the UR/IMR determination itself, so I don’t know if or to what degree the UR physician delved into the Klonopin withdrawal issue, nor do I know if that was discussed with the treating physician.

Rather my perspective is how these things should be handled and what the primary consideration should be.

 

 


8 thoughts on “King v CompPartners and the Duty of Care”

  1. The UR Medical Director assumes the final determination when there is conflict in an initial decision and the patients well being. That is why the Medical Director is there. Otherwise, the UR system can issue a determination and the physicians review and approval or intervention in a conflict would not be necessary.

    1. Thanks for the comment Deborah. I may be misunderstanding your point; my understanding is the IMR function is the final arbiter.

  2. The UR review was only a determination that the payer was not going to pay for the treatment. The patient is free to take their prescription to any pharmacy and pay out of pocket for the medication. That applies to any insurance coverage issue, be it a medication or a diagnostic test, or a surgery. The treating physician should have advised the patient to pay out of pocket for the medication.

    1. It should be understood that many people will not pay out of pocket for care, or will take a denial as recommendation that care is not necessary or that a less expensive alternative is available. We have not properly developed our complex system to educate patients or the public about how to manage their complex care. That is why case management is such an important field these days.

      1. Eric – well said. Unfortunately many patients – and non-patients – do not take responsibility for their own health. The massive increase in diabetes and pre-diabetes is just one result.

        While there are many reasons for this, the repercussions are most significant for the individual; winning a court case won’t bring you back from the dead.

    2. Good point, the UR reviewer is working with very limited and sometimes incomplete reports that really do not meet standard of care. That is why UR sends out letters and peer to peer calls to clarify and directly speak to the PTP, and get to the bottom of the issue at hand. If the PTP is not responding to UR, is submitting lackluster and boilerplate PR-2 reports, then this is what happens. Standard of care not only pertains to the UR reviewing provider but also to the PTP. I have read many reports submitted to UR, with many requests for care that do not meet standard of care. I have been to many practices where their documentation and reports do not meet standard of care. Its up to the practice manager to make sure reports meet standards and that the chart reflects proper management of the patient. You have to run a tight leash on most providers.

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Joe Paduda is the principal of Health Strategy Associates

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