Does Clinical Judgment Always Supersede the Guidelines? Or is it an Admission of Non-Compliance in DE?

Does Clinical Judgment Always Supersede the Guidelines? Or is it an Admission of Non-Compliance in DE?

In the self-serving world of treating physician testimony, regarding the issue of whether and why treatment satisfies the Delaware standard of "reasonable and necessary", I had to chuckle on happening upon a rare and recent example of what can only be called abject failure.  Maybe that's harsh and admittedly, I was not there when this case was heard.  But we all know that at least 75% of the time, challenges to medical treatment in the First State fail and those bills get paid.  Here is one worth checking out-- Rodney Nesmith v. Service Master, IAB # 1324506 (12/21/09).

 This case is a Utilization Review appeal "wanna be", which makes our scenario all the more humorous, in that the bills went to UR, the ruling was mailed out, and the claimant then switched counsel.  The subsequent attorney reportedly never saw the UR findings to appeal them and there was thus no appeal.  Over the employer's objection, the Board agreed to consider the bills notwithstanding the lack of an appeal, noting that this matter was already in litigation on a Petition for Review of Compensation Agreement seeking to terminate total disability.  Enter Dr. John B. Townsend, local neurologist and the defense medical expert, and Dr. Bruce Grossinger, the treating doctor.    Kind of like that old game from the 60s, Rock'em, Sock'em Robots……..[okay, so I am dating myself].

Dr. Townsend testified in careful detail as to how the Grossinger treatment, consisting of epidural and facet injections in tandem with chiropractic, was out of sync with the Health Care Practice Guidelines for Chronic Pain.  Dr. Towsend referenced specific Guidelines to support his opinion.

Dr. Grossinger's retort to the challenge to his treatment regimen was that he was more knowledgeable than Dr. Townsend, that he was "instrumental in writing the Guidelines", and that the "clinical judgment" of a physician should "always supersede the Guidelines."  I think that was intended to be a "one-two punch."  But did it hit the mark?

Well, sometimes bravado will get you nowhere and in this case pomposity did not pay off.  In fact, it left a balance due.  The Board took a dim view of Dr. Grossinger's testimony in this case and offered the following:

     In this case, Dr. Townsend gave a very detailed discussion as to exactly where the treatment claimant received exceeded what is contained in the Guidelines. In response, Dr. Grossinger failed to identify even one provision that he was actually in compliance with.  Rather, he asserted that his clinical judgment should always supersede the Guidelines.  This is practically an admission that the challenged treatment was outside those Guidelines.  Dr. Grossinger then completely failed to provide any factual basis for why the treatment he provided to claimant was actually reasonable despite being outside the Guidelines.  He stated that he was more knowledgeable about such things than Dr. Townsend, but such conclusory boasts do not provide any substantial evidence as to why treatment that is outside the established Guidelines should be considered reasonable in claimant's case.

The bills were not awarded.  Dr. Townsend's pride is intact, and irrespective of whether he played any role in the creation of the Practice Guidelines, I think one will find that his boxing gloves are unsullied. A nod to H. Garrett Baker as defense counsel on this one.

Wishing you all many victories and that justice be done on both sides in the New Year!

Cassandra Roberts

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