King v. CompPartners, Inc., et al.: Do Utilization Review Physicians Owe a Duty of Care to Applicants and What Is the Nature and Scope of the Duty of Care

By Raymond F. Correio, Esq.

A recent decision from the Fourth District Court of Appeal, King v. CompPartners, Inc., et al. 243 Cal.App.4th 685, 80 Cal. Comp. Cases 10, certified for publication, raises a number of provocative issues which will no doubt impact on the ongoing contentious battle between applicants’ attorneys and defendants related to the Utilization Review (“UR”) and Independent Medical Review processes implemented as part of SB 863.

[Publisher’s Note: Citations link to Lexis Advance.]

PROCEDURAL CONTEXT

It is important to note this is a civil case in which the plaintiffs, a husband and wife, sued a UR company, CompPartners, Inc., and two of their employee physicians for several civil causes of action, primarily medical malpractice. It must be emphasized the entire context of the court’s discussion and rulings relate exclusively to whether or not the trial court committed prejudicial error by sustaining defendant’s demurrer without allowing plaintiffs leave to amend and to file an amended complaint.

Defendants filed a demurrer which was ultimately sustained by the trial court without leave to amend. The Kings then filed an appeal with the Court of Appeal. Plaintiffs raised three essential issues as follows:

1.   Their civil claims were not preempted by the Workers’ Compensation Act;
2.   The UR company and two of their employee physicians owed them a duty of care; and
3.   The trial court erred by denying them leave to amend their complaint.

FACTUAL OVERVIEW

Plaintiff, Mr. King (“King”), suffered a specific work-related back injury on February 15, 2008. Over three years later, he experienced anxiety and depression allegedly due to his chronic back pain and was prescribed Klonopin in 2011. Evidently, the Klonopin was prescribed by one of applicant’s workers’ compensation treating physicians. Approximately two years later, in July of 2013, UR was conducted specifically to determine whether the prescribed Klonopin was medically necessary. The physician for the UR company, an anesthesiologist, conducted the UR and determined the drug was not medically necessary. The plaintiff’s complaint for purposes of the demurrer, alleged that generally a person must withdraw from Klonopin gradually by slowly reducing the dosage over time. Based on the UR decision to decertify, King was required to immediately cease taking Klonopin, and alleged that due to the sudden cessation he suffered four seizures, resulting in additional physical injuries.

Based on the complaint, sometime in September 2013, a physician (it is assumed for purposes of this article it was a treating physician) requested that King be permitted to take Klonopin again. One month later, in October 2013, another UR was conducted, this time by a psychiatrist. The psychiatrist determined the Klonopin was medically unnecessary and it was not certified as necessary medical treatment.

It was undisputed that both of the UR physicians never examined King and the first UR physician failed to warn him of the dangers of an abrupt cessation and withdrawal from Klonopin. It was also undisputed that both doctors were employees of the UR company, CompPartners.

THE PREEMPTION ISSUE

The Court of Appeal over four pages discussed in detail whether or not one or more of the plaintiff’s claims were preempted by the Workers’ Compensation Act.

In the author’s opinion, the primary defect in the court’s analysis of the preemption issue is there was no mention, let alone discussion, of whether or not the seizures suffered by King after his Klonopin was cut off without a weaning period were compensable consequence injuries of the original back injury of February 15, 2008, as were the anxiety and depression he suffered due to his chronic back pain that resulted in the Klonopin being prescribed in the first place.

The court relied heavily on the case of Vacanti v. State Comp. Insurance Fund (2001) 24 Cal.4th 800, 813-814, 65 Cal. Comp. Cases 1402 (Vacanti). The court interpreted Vacanti to “mean that if something goes wrong in the claims process with the workplace injury, such as collecting the money for the workplace injury, then that collateral claim must stay within the exclusive province of workers’ compensation. However, if a new injury arises or the prior workplace injury is aggravated, then the exclusivity provisions do not necessarily apply.” (Vacanti) supra, 24 Cal.4th at pp 813-814)

Again, in the author’s opinion, this ignores the compensable consequence injury doctrine which would tend to support an application of the exclusive remedy doctrine to preempt the plaintiff’s civil claims.

THE UTILIZATION REVIEW PROCESS AND PREEMPTION

The court engaged in an extensive review of the UR process in discussing whether preemption would apply after the case was remanded and the plaintiff’s complaint amended to allege further facts. The court distinguished two scenarios, one that would support preemption and exclusive remedy and the other that would not.

The court indicated there would be no preemption based on the plaintiff’s theory of faulting the first UR doctor for not communicating a warning to plaintiff since that warning would be beyond the “medical necessity” determination made by the UR physician.

However, preemption and the exclusive remedy would apply if plaintiffs were contending the UR doctor incorrectly decided the medical necessity decision because Klonopin was medically necessary until plaintiff was gradually weaned from it, thus a particular number of pills, e.g., 10, 20, should have been authorized. The reason for preemption in this situation would be because the plaintiffs were directly challenging the medical necessity determination and that would need to remain within the provisions of the Workers’ Compensation Act.

Plaintiffs made an interesting and compelling argument in their complaint and on appeal, in that they conceded they were not contesting the UR decision itself. The Kings said they did not want Klonopin to be prescribed again, but rather, they were complaining about the decision to abruptly stop the Klonopin rather than gradually stopping it.

THE DOCTOR-PATIENT RELATIONSHIP AND ALLEGED DUTY OF CARE BETWEEN THE UTILIZATION REVIEW PHYSICIANS AND MR. KING AND DETERMINING THE NATURE AND SCOPE OF THE DUTY OF CARE

As will be discussed in detail hereinafter, there is no doubt related to the court’s holding that there was a duty of care owed by the first UR physician to King. However, the critical issue as to the scope of or discharge of that duty, would be entirely dependent on the particular facts and circumstances unique to every case.

For purposes of malpractice, the court indicated that an essential element of a cause of action for malpractice is the existence of a physician-patient relationship in order to give rise to a duty of care. (Mero v. Sadoff) (1995) 31 Cal.App.4th 1466, 1471, 60 Cal. Comp. Cases 7.). The Court of Appeal also stressed that a physician-patient relationship can exist either expressly or implied. Once that relationship is found to exist, “the patient has the right to expect the physician will care for and treat him with proper professional skills and will exercise reasonable and ordinary care and diligence toward the patient.” (Keene v. Wiggins) (1977) 69 Cal.App.3d 308, 313, 42 Cal. Comp. Cases 1128).

The Court of Appeal in determining there was a doctor-patient relationship between the first UR physician and King relied on a case which held that a UR doctor in a non-workers’ compensation setting had a doctor-patient relationship with a person whose medical records were being reviewed. (Palmer v. Superior Court) (2002) 103 Cal.App.4th 953. The Palmer case involved a situation where the plaintiff’s primary care physician recommended the use of ultra light prostheses. However, the primary care physician’s request was then forwarded to the hospital’s UR department who denied it based on the hospital’s medical director’s determination the prostheses were not medically necessary. The Palmer court held the UR process was more than purely administrative. The court held and concluded, that the hospital’s medical director, who concluded the prostheses were not medically necessary, “was acting as a healthcare provider as to the medical aspects of that decision.” The court explained the medical director’s UR decision amounted to medical care, it was not purely administrative, since UR had to be “conducted by medical professionals, and they must carry out these functions by exercising medical judgment and applying clinical standards.”

Based on a two-prong inquiry, the Court of Appeal in the instant case indicated that based upon Palmer there is a doctor-patient relationship between King and the first UR doctor who did not certify the Klonopin and did not issue a warning to the plaintiff. “When the physician-patient relationship exists, either express or implied, the patient has a right to expect the physician will care for and treat him with proper professional skills and will exercise reasonable and ordinary care toward the patient.” (Keene, supra, 69 Cal.App.3d at p. 313)”

DETERMINING THE NATURE AND SCOPE OF THE DUTY OF CARE

The Court of Appeal issued a cautionary note, however, indicating that just because a duty of care exists does not mean “a doctor is required to exercise the same degree of skill towards every person he sees. The duty he owes to each varies with the relationship of the parties, the foreseeability of the injury or harm that may be expected to flow from his conduct, and the reliance which the person they reasonably expected to place on the opinion received. A case-by-case approach is required.” (Keene, supra, 69 Cal.App.3d at p. 313). In other words, a determination of the nature and scope of the duty of care owed depends on the unique facts of each case.

Applying that cautionary note and reasoning to the facts of the instant case, the Court of Appeal indicated that while there was a duty owed by the first UR physician to King, the scope or discharge of that duty would depend upon the facts and circumstances of this particular case. The court raised a number of questions related to the fact that King’s complaint included very few factual details. The Court of Appeal indicated that one of their concerns was that given the lack of factual allegations related to the scope of the duty of care owed it could not be determined from the complaint itself. The court also stressed that it was important to determine what input, if any, the prescribing doctor or primary treating physician may have had in following the UR physicians’ determination not to certify Klonopin. (In this regard see Labor Code §§ 4610(g)(3)(A) and 4610(g)(3)(B)).

Without further facts there was no way the Court of Appeal could definitively determine whether the UR’s physicians’ duty of care required some form of warning to King in order to protect him from the risk of seizures. The court also indicated that a discreet area of inquiry from a factual basis would be whether or not the UR doctors’ decision not to certify further treatment with Klonopin was conveyed to the primary treating physician, implying that the primary treating physician could have taken other steps such as continuing the Klonopin prescription pending a possible appeal of the UR decision.

QUESTIONS

•   Whether the issues of doctor-patient relationship and duty of care related to non-examining UR and IMR physicians is within the jurisdiction of the WCAB since these issues do not relate to “untimeliness.” Remember, the Kings in the instant case conceded they were not contesting the UR decision itself, but rather the failure to warn. Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 (Appeals Board en banc) (writ denied) (Dubon II). See also, State Compensation Insurance Fund v. WCAB (Sandhagen) (2008) 44 Cal.4th 230, 73 Cal.Comp.Cases 981, and Arroyo v. Inland Concrete Enterprises, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS __ (UR decision did not address the issue raised by the request for authorization, and WCAB equated this with there being no timely UR. Dispute could be determined by a WCJ based on substantial medical evidence pursuant to Labor Code § 4604.5).
•   It remains to be seen if WCJs and the Board find there is jurisdiction to determine such a dispute under UR, and whether WCJs and the WCAB will adopt and affirm the Court of Appeals holding that there is a doctor-patient relationship between injured workers and non-examining UR reviewing physicians every time UR is conducted or only in cases with special or unique scenarios as in King.
•   Even if the WCAB determines there is a doctor-patient relationship between an injured worker and a non-examining UR physician, the nature and scope of that duty will be contingent on the particular and unique facts of each case.
•   Whether the King case will provoke a legislative response to prevent or limit a determination that a doctor-patient relationship can be created by a review conducted by a non-examining UR physician or Independent Medical Review physician pursuant to Labor Code §§ 4610, 4610.5, 4610.6, and the applicable regulations.

© Copyright 2016 Raymond F. Correio. All rights reserved. Reprinted with permission.