King v. CompPartners: A Litigation Update

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Toms Case Law Update Article for Aug 2016

As you may have heard, the Supreme Court of California will hear the King v. CompPartners case. This case is very important to the Utilization Review (UR) community because it will decide whether or not a UR physician, who never personally examines the claimant, is actually practicing medicine and owes the claimant a duty of care as would a traditional physician.

The defendants, CompPartners, have filed their Opening Brief before the Supreme Court of California. The brief gives us a good look at their legal position as they state the reasons they do not believe a physician should be considered practicing medicine when performing UR.

Before I proceed further, I want to review the facts surrounding the case. In 2008, Kirk King sustained a work-related back injury. At some point he was prescribed Klonopin to help with anxiety. After taking Klonopin for some time his employer sent the request for Klonopin to UR, which was managed by CompPartners.

CompPartners had one of their physicians, Dr. Sharma, review the request. Dr. Sharma, after referencing the California Medical Treatment Utilization Schedule (MTUS), did not believe Klonopin was medically necessary. As a result, CompPartners sent notice to King and his treating physician that Klonopin was not approved.

King ceased taking Klonopin and allegedly suffered seizures from the abrupt withdrawal. He sued Dr. Sharma for failing to warn, and the CA Court of Appeal said he had a viable cause of action against CompPartners and Dr. Sharma for failing to warn him that immediate cessation of Klonopin could cause seizures. CompPartners appealed to the Supreme Court of California.

In their Opening Brief, CompPartners argues that a physician doing UR is not practicing medicine and does not owe a claimant a duty of care as would a traditional treating doctor.

NO DUTY TO PROVIDE MEDICAL ADVICE

A UR physician has no duty to warn an injured worker or otherwise provide medical advice. The legislature specifically created the limited role for Utilization Review physicians. The idea was to provide a quick and inexpensive review to confirm that the treating physician’s recommended treatment was medically necessary pursuant to the MTUS. (See LC Sec. 4610(a). CompPartners argues that, if upheld, the CA Court of Appeal’s decision would raise uncertainties, increase costs and slow down the review process. Indeed, each UR physician would wonder just how much “medical advice” he or she would be required to provide.

The brief also points out that there is no mechanism for back and forth communication between a UR physician and a claimant. In fact, in California the UR physician sends different letters to the treating physician and the claimant. The letter to the treating physician includes the UR physician’s telephone number. The letter to the claimant does not. This is set forth by the Labor Code and California Code of Regulations.

NO REASONABLE INTENT ON BEHALF OF THE PARTIES

Keene v. Wiggins, from 1971, suggests that a party’s reasonable intent is key when trying to determine if there is a physician-patient relationship. In the Keene case, a physician was asked to examine a claimant to provide the carrier with information with respect to a disability rating. The claimant got a copy of the physician’s report and later sued the physician, claiming that he relied on the report to his detriment. The court in Keene said that the physician’s report was prepared for the carrier at the carrier’s request. The court said that if the physician volunteered information or medical advice, then the physician-patient relationship may well have arose; but that wasn’t the fact. A similar situation arose in a case called Harris v. King (1998) 60 Cal.App.4th 1185, with the same result.

 

Looking outside of comp, we see the same results. For example, where prospective employees are examined by employer retained doctors, or a carrier requests an Independent Medical Examination (IME) as seen in disability litigation, the physician does not generally create a physician-patient relationship.

ALL CLAIMS WITH RESPECT TO MEDICAL ISSUES MUST BE RESOLVED BY IMR

In addition, there’s an interesting argument that the only remedy King had was IMR and that he should be precluded from seeking any other remedy. In other words, the CA Legislature’s carefully-designed IMR system did not provide for various “additional tort theories” to be brought outside of IMR. If a claimant disagrees with a UR physician’s determination, that claimant can pursue IMR. Failure to do so precludes any other lawsuits, such as for failure to warn, or anything else a creative attorney may consider.

The CompPartners Opening Brief is now filed, and we await the Respondent’s Brief. Interestingly,the attorneys representing King have requested an extension of time to file their brief. So we expect to see their brief filed by the end of September. After that, CompPartners will be allowed to file a Reply Brief, and then the Supreme Court of California will decide the case. We at UR Nation will continue to closely monitor this case as it greatly affects the UR community.

Tom Swiatek

Tom Swiatek

As Assistant Vice President of Regulatory Services, General Counsel, and Editor in Chief of UR Nation, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a California Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.