Is Performing Utilization Review the Practice of Medicine?

| | Evidence Based Medicine, Physician Peer Review, Utilization Review

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Zenias Oct 2016 Article on is UR Physician Practice of Medicine
It may surprise you that this is not a rhetorical question. I believe if you ask this question to practicing clinicians and utilization reviewers, they would answer “No.” However, from a legal perspective in California the answer is not so straightforward.

As many of you know, the Supreme Court of California will hear the King v. CompPartners case. This case is very important to the utilization review (UR) community. This case will decide whether or not a physician performing UR is actually practicing medicine and owes the claimant a duty of care. Keep in mind that the UR physician never examines the claimant, and therefore has no physical doctor-patient relationship with the patient. However, the UR physician would be expected to have the same level of responsibility as would, for example, a primary care physician.

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

CompPartners had one of their UR physicians, Dr. Sharma, review the request. After reviewing the submitted medical records and California Medical Treatment Utilization Schedule (MTUS), Dr. Sharma concluded that Klonopin was not medically necessary. As a result, CompPartners sent notice to King and his treating physician that Klonopin was not approved.

King stopped taking Klonopin and allegedly suffered seizures from the abrupt withdrawal. He sued Dr. Sharma for failing to warn him of this risk. 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. That’s where the case awaits.

In my analysis of the question, “Is Doing UR the Practice of Medicine?” realize that I am approaching this from both a practicing physician and UR reviewer perspective. The Supreme Court of California will tell us the law. But what I want to do is explain my reasons why performing as a UR physician is not practicing medicine.

THE ROLE OF THE UR PHYSICIAN IS VERY LIMITED IN SCOPE

The California legislature specifically created the limited role of UR physicians. The idea was to provide a quick and inexpensive review to confirm that what the treating physician was requesting was medically necessary pursuant to the California Medical Treatment Utilization Service (MTUS). As you may know, the UR physician never physically examines the claimant. There are many reasons for this. The first is speed – doing so would greatly slow down the process. The second is cost. When California created the limited role of the UR physician, legislators knew that a “paper review” of the medical records would be much less expensive than a complete physical evaluation. While it is possible that the UR physician may gather additional pertinent information by personally interacting and examining the claimant as part of the UR process, the legislature did not take this route.

Another part of the limited role of the UR physician is that communication between the UR physician and the claimant is deliberately restricted. There is no mechanism set up 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 contains the UR physician’s contact information while the letter to the claimant does not. The reason for this difference is that the legislature wants the claimant to turn to his treating physician for medical advice rather than contacting the UR physician. This is all set forth by the Labor Code and California Code of Regulations.

Taking this further, if UR physicians were required to provide “medical opinions” to claimants, how much would be appropriate? The main problem I see would be that the claimant already has a treating physician. This treating physician has presumably physically examined the claimant, and has created a treatment plan. So the net effect of something like this would be a second medical opinion, which is not what the California legislature had in mind.

CLAIMS INVOLVING MEDICAL ISSUES MUST BE RESOLVED BY IMR

A major part of SB 863 was creating a system of Independent Medical Review (IMR). The idea was that any dispute as to whether or not a claimant should get a particular treatment should go to an independent third party physician. In California, this independent physician works on behalf of Maximus Federal Services. In other words, the Legislature’s carefully designed IMR system was set up such that if a claimant disagreed with a UR physician, he or she could proceed to IMR. The remedy was not for the claimant to contact the UR physician and attempt to convince the UR physician to change her mind.

CONCLUSION

As stated previously, the CompPartners case is now before the Supreme Court of California. In time, the Court will make its decision on the law. But just from a practice of medicine standpoint, for the reasons above, I do not believe serving as a UR physician is truly the practice of medicine, in the traditional sense.

Zenia Cortes, MD, Orthopedic Surgeon

Dr. Zenia Cortes brings her combined expertise in sports and orthopaedic medicine to UniMed Direct, along with insights from her experience in peer and utilization review.