Saturday, December 13, 2014

MALPRACTICE BY UTILIZATION REVIEW?

MALPRACTICE CASE STORY IN PROGRESS

Here's the story we're working on right now: a Utilization Review physician with a California license is being challenged for a decision that is reported to have resulted in harm to a patient. As we go to press, here's what we know: 

1) Patient X sustained brain and spinal cord injury in 2001;
2) Patient X had a three-level cervical fusion;
3) Patient X had been on lyrica since 2008; 
4) Patient X reported relief of symptoms;
5) Patient X did not report adverse effects;
6) UR Doctor Y was referred the case for review;
7) As is the custom in these cases, UR Doctor Y did not interview or examine the patient since so doing is not required by California law covering utilization review;
8) As is the custom in these cases, UR Doctor Y reviewed the documents forwarded by the insurance company, three medical reports that purportedly covered the injured worker's 12-year medical and surgical history;
9) At this point one of the allegations against the UR doctor that could also be directed against the insurance company is that a paucity of medical records was reviewed by the doctor and/or submitted by the insurance company;
10) UR Doctor Y submitted a report advising that the dosage of lyrica which had been prescribed for about 6 years be cut in half;
11) This recommended reduction in medication was accepted by the insurance company which then reportedly declined to authorize the next request for medication refill (we do not know at this time if the actual primary treating physician or PTP agreed, acquiesced,  or rewrote the prescription in accordance with the UR recommendation). We also do not know if the PTP filed an appeal;
12) Patient X did poorly with  the reduced medication and experienced adverse effects;
13) In due course, a California licensed physician got the original dosage restored;
14) Patient X sustained adverse effects that were short-lived and reversed once the original dosage was restored;
15) Patient X now has a lawyer who has instituted proceedings to report UR Doctor Y to the Medical Board of California and to initiate a malpractice complaint. 

In summary, although we believe we know more, the facts as stated above can safely be stated with reasonable medical probability.  In previous op-eds, see also my reprints in workcompcentral,  we've pointed out that Dr. Frantozzi as president of the MBC submitted a letter stating that UR was part of the practice of medicine and required a California medical license -- in this case, the offending UR doctor does in fact have a California medical license which is why the MBC retains jurisdiction in this case. In other cases where the UR doctor does not have a California medical license, there would be no sense in even submitting this complaint to the MBC. Malpractice litigation would be the only choice. In this case, it appears that both options are open. We'll follow up when we know more, Stay tuned. 

MORE, A LITTLE MORE, IS HEREWITH REPORTED: repeal of SB 863 is indicated. 

If you stayed tuned as requested, here's the next bits of information we've gleaned about this patient's plight. The PTP in this case reportedly filed an updated RFA which dutifully got referred back to Utilization Review. A different UR doctor than the one who nixed the original prescription then opined in favor of the original lyrica prescription. The medication was then re-authorized. We're also advised that the Medical Board has now been advised about this case and has been asked to comment on it.  This method of medical practice owes its existence to SB 863. The solution is repeal of SB 863.  Stay tuned, this fight has just begun. 

References

"Medical Board Asserts Jurisdiction Over Utilization Review," workcompcentral.com, by Greg Jones, 2013-06-12;

"Utilization Review Hypocrisy in Velvet Gloves," workcompcentral.com, by Robert Weinmann, MD, 2014-03-26;

"Is Utilization Review in the Cards for 2015?" workcompcentral.com, by Robert Weinmann, MD, 2014-12-03.


Wednesday, December 3, 2014

PROPOSITION 45 MAY RIDE AGAIN (Regulating Insurance Companies That Sell Healthcare Policies)


Like a reliable bucking bronco used to rodeo participation, Proposition 45 may be down, not out, and capable of rising again if supportive organizations adopt it, revise it, and promote it. 

Among the physicians who were supportive of Prop. 45  we can probably still count on Paul Song and Robyn Young to maintain interest and put up a fight. Doctor Song is reported to have an eye on running for insurance commissioner once Dave Jones has finished his tenure. Young is president of the California Neurology Society and maintains hands-on interest in  medical- political issues in Sacramento and Washington, DC.

What killed Proposition 45 in the November, 2014 voting in California was the widespread perception that regulation of the insurance companies was largely smoke and mirrors. The idea was to allow the insurance commissioner as much authority over the sellers of healthcare insurance as is now allowed with reference to automobile liability insurance.

That meant that the insurance commissioner would be enabled to role back an insurance company's increase in premium it it were judged by the insurance commissioner to be arbitrary, not substantiated by demonstrable need. The insurance commissioner would be judge and jury. 

Careful readers of the proposition quickly realized that what was deemed "arbitrary" might itself be arbitrary and that insurance commissioners might yield to political persuasion. The insurance companies countered with an ad that said doctors, not politicians, should decide medical matters. The obvious riposte was that insurance companies currently readily find ways to deny authorization of care, restricting access to diagnostic studies, specialists, and expensive procedures, sometimes even medicines. The proponents of 45 were caught flat-footed, or when not flat-footed, too penurious to afford proper rebuttal ads. 

The Californnia Medical Association and the Union of American Physicians and Dentists found common ground in opposing 45 -- they agreed that a likely scenario for an insurance company whose increased premium got rebuked would simply be to reduce remuneration to providers such as hospitals, clinics, and physicians. That being so, they opted to oppose the proposition since its obvious effect would be to reduce access to care. The likely next step would be for MPNs (Medical Provider Networks) to fire physicians as fast as possible -- the longer the waiting line for access to care, the lower monthly expenses would be, the higher profits and executive compensation would be,  never mind that overall serious illness would go up. The obvious fly-trap was "insurance  for everybody, medical care for nobody"

As a result these and other medical organizations opposed the proposition even though in their collective guts they may have favored the concept.  Prop. 45 did not cover providers or provider groups because it did not give the insurance commissioner authority to regulate provider reimbursement by the insurance companies.

Now it's up to the proponents to write a proper legislative bill that takes these concepts into account and puts them into legislative language in time for the 2015 legislative session. Since there's a long history on this concept, AB 52 from previous failed legislation, and now Prop. 45 itself, it should be possible to construct a new bill that will tie up these loose ends. The next step will be to get a legislative author and to be available as an articulate sponsor at committee hearings and the like. 

Indeed, since the concept already has traction, my advice is to seek out an appropriate legislator to carry the bill with the understanding  that when he looks over his shoulder he'll see troops in support, not defectors fleeing the political scene. 



Monday, December 1, 2014

IS UTILIZATION REVIEW IN THE CARDS FOR 2015?

Utilization Review (UR) is the process in Workers Comp whereby outside physicians decide whether or not to authorize care prescribed by a PTP (Primary Treating Physician) or consultant called upon by the PTP to advise about the next diagnostic or therapeutic steps that should be taken for an industrial patient or injured worker. Under current California law the UR physician does not have to be licensed to practice medicine in California -- any state license suffices. Proponents of the current system argue in support of the position that where a physician is licensed is beside the point and should not be made an issue. What matters, they say, is that he is knowledgeable in the specialty in which he opines and on this basis should be allowed to approve or disallow authorization for treatment based on accepted peer review guidelines. Opponents point out that the UR physician is actually practicing medicine and should be just as responsible to the state medical board as the PTP.

Opponents assert that some insurance companies go out of there way to find physicians who are more likely than others to be nay-sayers who deny more diagnostic services and treatment than their colleagues. California's state medical board has recognized this awkward situation and is on record saying that UR is part of the practice of medicine and that UR physicians on California cases should be licensed in this state. This writer agrees, but it will take fresh legislation to get this change into law. In fact, three times such legislation actually cleared the California legislature, and three times it was vetoed, twice by Gov. Schwarzenegger, once by Gov. Brown, at the heavy handed persuasion of the insurance lobby. However, the tax circumstances that applied then no longer apply, reason enough to try again and give Gov. Brown a chance to redeem himself.

This topic has previously been discussed in these pages, e.g., "Utilization Review: Hypocrisy in Velvet Gloves," and reprinted in toto in workcompcentral, 2014-03-26.

See also for reference "How to practice medicine without a license," San Francisco Chronicle, 8/29/08.

Willful or wrongful denial of care may constitute "unprofessional conduct." If a doctor with a California license willfully or wrongfully denies care, that doctor may be asked to appear before the state medical board for "unprofessional conduct." No such threat awaits the non-California licensed physician. The non-California licensed physician may not be hauled before his own state board, either -- that board would not have jurisdiction in a California case. As matters stand now, the doctors whose decisions invariably favor cost-cutting by denying care need not worry about professional discipline for wrongful denials of care. This situation begs to be changed. It'll require legislation akin to Texas law which requires doctors who do UR in Texas to be licensed in Texas.

At the moment, doctors licensed in California cannot do UR on Texas patients without first getting licensed in Texas. By contrast, Texas doctors who aren't licensed in California may deny authorization for diagnostic studies or treatment ordered by doctors licensed in California who are trying to take care of patients injured in California. The California doctor ends up carrying the proverbial malpractice bag through no fault of his own. The non-California doctor who actually denied the diagnostic study or treatment skedaddles away paid and unscathed.

One major lobbyist told me he's all for revising Utilization Review law but would need to be assured that the Governor would not veto it this time. As anyone knows who has dealt with Gov. Brown, we do not offer guarantees on what he'll do or won't do. Our job is to persuade.

UR in California is often buttressed by a yes-man mentality from IMR physicians, that is, from Independent Medical Review doctors who also don't need to be licensed in California and, who, to make matters worse, are actually protected by anonymity endowed by recently passed California legislation which also cries out for adjustment, better yet, outright repeal (we refer here to SB 863, DeLeon). The Medical Board of California (under then President Richard Fanozzi, MD) stated in a letter dated 8/25/08 that the MBC supported legislation that "would require a physician who is conducting utilization review to be licensed in California " because that "would provide increased consumer protection over decisions that do not have patients as its primary concern."

Instead, what has happened with IMR is that "consumer protections over decisions that do not have patients as its primary concern" has been weakened.

Organizations that have previously expressed concern with current standards re UR include the California Society of Industrial Medicine and Surgery (CSIMS), California Physical Medicine and Rehab (CPM&R), California Medical Association (CMA), California Applicants' Attorneys Association (CAAA), Union of American Physicians and Dentists (UAPD), Voters Injured at Work (VIAW), LatinoComp, and California Neurology Society (CNS).

We're now obliged to wait to see which one takes the lead on UR and IMR reform in the 2015 legislative year. Our recommendation is that it be a consortium that pools its resources. 

Friday, October 31, 2014

Will Proposition 46 suffer from an over-the-top advertising debacle?


A recent advertisement for Proposition 46 depicts a purported doctor in white coat adorned with casually strewn stethoscope over his shoulders sitting at a bar while ordering a drink, presumably other than ginger ale, while his pager goes off -- he's being called to the emergency room, no matter if he's in a drunken stupor. 

With this final flailing effort, Consumer Watchdog appears to have hurled its last lightning bolt in support of Proposition 46, the initiative to raise trial awards for pain and suffering in malpractice suits from $250,000 to $1.1 million. Consumer Watchdog, down to its last one million dollars, reportedly wagered the entire store on this last-ditch effort. It's a gamble that may have misfired.

While consumers are not as mesmerized by physicians as once they were, they're still not at a level where they believe that doctors in general have sunk to this level.  Physicians are still generally admired by the public. Physicians who fall short of public expectations suffer mightily in the court of public opinion and are subject to discipline by the medical board.  The public, more sophisticated than Consumer Watchdog realizes, are not easily misled. 

This latest ad depicting a presumably inebriated doctor on his way from the saloon to the emergency room may have overshot the mark and turned undecided Proposition 46 voters into NO votes on 46.  Consumer Watchdog reportedly depleted its campaign funds with this desperate advertisement and along with it sacrificed its own credibility.


Wednesday, October 8, 2014

PROPOSITION 45 HEATS UP


Enter now Paul Y. Song, MD, into the Proposition 45 debate. Actually, he's been there all along, has already appeared in my edits, testified at the all day hearing on 45 before it was known as Proposition 45,  and is said by some to be a prospective candidate for insurance commissioner.

In his editorial entitled "Why Are CA Doctors Breaking Their Hippocratic Oath on Prop. 45," Song asserts that the doctors and nurses opposed to 45 are protecting the insurance industry. He says "it is unconscionable." His main point seems to be that there is no conflict with the "independent commission" whereas "Covered California is actually run by purely political appointees." THAT is no news to us -- we don't know of any commission where prospective appointees are required to pass achievement tests and demonstrate that they know anything other than how to make political contributions. Song points out that some of the Covered California persons "have a long cozy history with the private insurance industry." Song points out with some relish that "it is the private health insurance industry and their administrators, many of whom have never cared for a patient, who are denying care, while telling doctors what treatment and drugs they can provide."

Song says that Prop. 45 "would simply apply the same regulatory framework to health insurance which has proven so successful regulating auto, home, and medical malpractice insurance in California." He likens Prop. 45 to Prop. 103 vis-a-vis auto insurance rates.

The juicier parts of Song's editorial include his telling certain persons and groups to "stop spreading ... lies." Take a look at it, and Young's editorial, and Bussey's. In many ways Prop. 45 is more substantial as important legislation than Prop. 46.

Our point is that while Prop. 45 if it passes will have the bite of law, its eventual teeth will be in the rules and regulations that follow. The proponents will need to make sure that the rules and regs are composed by forces that want it to succeed. Are they ready and prepared for the job?

References

You can follow Paul Y. Song on Twitter at www.twitter.com/paulysong; Bussey's editorial is referenced in our previous post & appears in UAPD Pulse; Young's editorial is referenced in our two previous posts and on the website for the California Neurology Society 

Monday, October 6, 2014

Proposition 46 -- last word, well, almost!


Proposition 46, most voters have figured out, is about raising the limit on "pain and suffering" from $250,000 to $1,100,000 if not more. This amount would be in addition to unlimited economic damages which is already the law. In other words, a cadre of lawyers whose specialty is medical malpractice would be emboldened to sue in circumstances where they might otherwise decline. Ask yourself what would be the consequence of so doing according to Proposition 46?

1) Most likely, insurance companies will raise their annual premiums for a family of four by about $1,000 to $1,250.

2) State and county hospitals, supported by tax dollars, often get virtually hopeless accident cases where medical error may occur even in the hands of the most skilled surgeons. To cover the costs of increased malpractice payouts it is likely that state and county taxes will go up. 

3) What about the system whereby physicians would be obliged to find out what drugs their patients were on before prescribing analgesics for pain. Truth is, I personally called into the system months ago to ask about a patient. That was before Proposition 46 was known. Nobody was home. I was advised that although the program existed in theory it wasn't funded well enough to have full time staff with telephone exchange and answering services. Not to worry, increased taxes should take care of that deficiency. But isn't this system the one we depend upon for privacy about our medical prescriptions? Additional safeguards will be needed. Not to worry about that, either -- increased taxes should pay for enhanced privacy protection, shouldn't it?  

Conclusion: the trial lawyers didn't do a scholarly enough job in putting Proposition 46 together. As written Prop. 46 puts ordinary citizens at risk for increased costs for health insurance premiums, for increased state and county taxes, and for invasions of privacy. It should be defeated. Vote No on 46.


Thursday, October 2, 2014

Proposition 45: pro and con


Robyn G. Young, MD, president, California Neurology Society, presents her case for Prop. 45 in her editorial available on ca-neuro-society.org (it is also summarized in our previous blog in the end-of-article listing of references).

Now comes Stuart A. Bussey, MD, JD, president, Union of American Physicians and Dentists, who writes in the "The UAPD Pulse" why Prop. 45 does not deserve passage.

Bussey's piece makes these points:

1. Prop 45 would shift regulatory authority from an independent commission to one political figure who would then become a "pressure point" subject to special interests.

Comment: the independent commission is also subject to special interest pressure, but it's more difficult to get to an entire committee than one person. On the other hand, commissioners get their jobs by appointment, political appointment, not by scoring well on achievement tests.

2. Bussey points out that under the ACA administrative costs are limited to 20% -- anything over that "must revert back to patient services."

Comment: Trouble is that the insurance companies often try to sneak administrative costs into the "patient services" sector. Example are utilization reviews requested by insurance companies that seek to disguise them as "consultations."

3. If  Prop. 45 passes a likely revenge step the insurance companies will take will be to slash provider reimbursement. Agreed, that's what they'll do, not that they don't already do it. The independent commission has not roared its disapproval of provider abuse.

Comment: It's also likely that the insurance companies and MPNs (Medical  Provider Networks) will jettison hundreds of doctors as a way to reduce expenses (not that that hasn't already been done). That in turn will force the remaining doctors to see more patients faster (the short visit you get now will be made even shorter).

My opinion: if Proposition 45 passes, the next step will be the implementation of rules and regulations. Proponents should be ready to take that matter on from Day One. That means day-to-day readiness to participate in the regulatory process. Proponents feel they have a better chance at fair regulation with Proposition 45 than without it. Opponents are skeptical, and with good reason, e.g., the unions bent over backwards to get Brown elected Governor only to find out yesterday that he vetoed all three of their bills. Would a single insurance commissioner be different?

The latest re the ACA: a laboratory in San Jose has just  billed a doctor's office for laboratory work done for Medicare patients. The lab in question said that changes in the Affordable Care Act made in January of 2014 allows them to do so. We'll look into this matter and see what the current insurance commissioner wants to do --  it'll be a prelude to what he'd do were Proposition 45 to pass.

In our next blog, we're planning on a few parting shots re Prop. 46,

Question: When should lawyers be tested for drugs?

Answer: When they're awake.