Could utilization review physicians and UR provider companies face liability lawsuits filed by injured workers alleging they were damaged by the administration of the UR process?
Perhaps.
That appears to be possible under certain circumstances after a 2016 decision by the California Court of Appeal 4th District, Kirk King v. CompPartners (see link to the decision at the bottom of this post).
Applicant attorneys were elated when the King decision came down. This was seen by many as a much-needed incentive for UR providers to clean up their act. The threat of monetary liability would cause UR doctors to look more carefully at the serious potential health ramifications of their decisions.
A frequent complaint about UR is that UR doctors don’t look at the big picture context of the worker’s situation and how the UR decision will play out in managing the workers’ health.
In King, Kirk King had been receiving Klonopin on an industrial basis. But Dr. Sharma, a UR doctor, determined the drug was unnecessary and decertified it. King was not advised of the dangers of withdrawing from the drug suddenly. As the court noted, “Typically, a person withdraws from Klonopin gradually by slowly reducing the dosage. Due to sudden cessation of Klonopin, Kirk suffered four seizures, resulting in additional physical injuries.”
In argument at the trial court on the motion to dismiss, King argued that he was not contesting the UR decision itself but rather the UR decision to stop the Klonopin rather than gradually stop the Klonopin.
Cold turkey versus gradually.
Kirk lost at the trial court level. His lawsuit was dismissed.
On appeal, King noted that he was alleging two options for how the UR doctor harmed him:
“The first option is that Sharma harmed Kirk by not informing Kirk of the possible consequences of abruptly ceasing Klonopin. This option involves a second step in the utilization review process: Sharma determines the drug is medically unnecessary and then must warn Kirk of the possible consequences of that decision. The second option is that Sharma harmed Kirk by incorrectly determining Klonopin was medically unnecessary, because the drug was medically necessary until Kirk was properly weaned from it.”
The Court found that option one was not preempted by the California workers’ comp law but that option two was preempted.
A key component of the Court of Appeal decision is the holding that under California case law a utilization review doctor does have a doctor-patient relationship with the person whose records are being reviewed. The court notes that “Because there is a doctor-patient relationship, Sharma owed Kirk a duty of care.”
The Court of Appeal remanded the case to the trial court told allow Kirk King to amend his complaint to clarify the factual allegations related to the alleged duty.
This decision caused a great stir among UR provider companies and many in the insurance industry.
There is continuing debate over how much UR is done ( the stats may look different depending on whether one is focusing on treatment for older, chronic injuries or whether recent and no-loss time injuries are in the mix). And there are nascent discussions about reducing UR in certain selected circumstances. But UR remains popular with carriers as a way to control medical costs.
Many see King v. CompPartners as a threat to that. Among the heavy hitter groups that filed a request for depublication are the following: California Workers’ Compensation Institute, California Chamber of Commerce, ExamWorks, Coventry, Grimmway Farms, Schools Insurance Authority, the County of Los Angeles, Albertsons Safeway, the California Association of Joint Powers, the American Insurance Association, California Self-Insurers Association, and the California Landscape Contractors Association.
In case you are wondering, lots of people see this as a big deal issue.
The California Supreme Court has now decided to hear the case.
It’s not clear whether the Supreme Court is agreeing to hear the case because there is so much interest by major groups or whether they have already flagged the Court of Appeals decision as problematic.
We shall see.
Here is the text of the King v. CompPartners case:
Stay tuned. You can subscribe to the blog by entering your e-mail address in the box on the right hand column.
Julius Young
510.835.8870