Facts:
Ritchie claimed injury at work. The first providers to treat him, including a Dr. Robinson and a chiropractor, requested an independent orthopedic exam authorized by Paula Insurance, the worker's compensation carrier. Orthopedic surgeon Krasner, the examiner, opined to Paula that Ritchie had suffered only a strain and needed no more treatment for any industrial injury. Paula terminated worker's comp benefits, and Ritchie failed to seek further care for 8 months despite continued symptoms, until he qualified for medical insurance, when his own physician, a Dr. Solomon, diagnosed spinal cord injury and recommended surgery. Residual symptoms were blamed on the delay, so Ritchie sued, first for malpractice, but then died of "accidental" overdose, so his family added wrongful death. The jury verdict awarded $5 million to the plaintiff against several defendants, including Krasner, who appealed. The Arizona appellate court affirmed the verdict (appellate opinion).
Duty:
Ordinarily doctors who conduct independent examinations for employers and insurance companies are not considered to owe a duty to the examinee, who is not their patient. In fact, often the questions asked of the doctor have little to do with practice of medicine. For example in worker's comp cases like this one examiners are routinely asked whether the cause of the illness or injury was work related. Such a question is rarely if ever relevant in medical practice.
In its opinion the court acknowledges that in many cases of independent examination a duty to the examinee may not exist, but upheld the finding of duty in this case apparently because Ritchie claimed that he relied upon Krasner's opinion in "deciding" not to pursue treatment with his own providers. According to the opinion "Krasner’s report prevented Jeremy [Ritchie] from seeking treatment either because he relied on Krasner’s report or because Paula relied on the report, causing it to terminate Jeremy [Ritchie]’s workers’ compensation coverage.(¶28) But it appears that Ritchie's ultimate diagnosis was delayed, not because he did not seek treatment, but because he delayed seeking treatment either because coverage by AHCCCS was delayed (because he did not qualify financially) or because Ritchie chose to spend his money on something other than a physician or health insurance. He did in fact seek another medical opinion, this time from his own physician, as soon as he obtained medical benefits under AHCCCS.
Ritchie's failure to obtain benefits was not the responsibility of Kranser or any other physician. If Krasner was negligent in opining that there was no industrial injury, for that aspect of his services his only duty, and his only dereliction of that duty, was to Paula. Only Paula should have cause of action against Krasner for such negligence. One wonders why Ritchie did not name Paula in the suit. ERISA? Some other sort of immunity?
Although the opinion may not have addressed the issue directly it appears that the appellate court allowed that Krasner's duty flowed through Paula to him by way of denied benefits. This was wrong. Doctors have no duty to obtain benefits for an individual, regardless of the nature of the relationship. The role of a physician is to diagnose and treat illness. Krasner's liability should have been limited to what would have occurred had Ritchie had access to care. This issue has become a problem in states where treating physicians must claim that a condition was work related in order to obtain reimbursement. Even though most states exclude mental-mental or stress claims, physical-mental claims (mental disorders arising out of physical injuries) commonly arise creating role conflicts for psychiatrists. Independent examiners, not treating psychiatrists, should determine causality.
Damages:
The jury may have erred in finding that Krasner's presumed negligence was the proximate cause of Ritchie's death. Ritchie's history of alcoholism and other substance abuse suggests that he had already established a pattern of ignoring directions in taking drugs he knew or should have known would be dangerous in overdose. He may also have been able to obtain the same drugs illicitly. Furthermore, it is likely that he used the drugs, or used too high a dose of the drugs, not to treat injury-related pain, but to get high. Once more this could not reasonably be blamed on Dr. Krasner. The logic in the appellate argument applying a foreseeability test is flawed. It is in fact also foreseeable that "from time to time" anyone to whom opiate agonists are prescribed will lie to physicians to obtain drugs or use the drugs to get high. This does not require negligence on the part of the prescribing physician. It is also of course foreseeable that any individual with or without a history of addiction will "from time to time" (¶26) overdose on any of a variety of drugs (obtained from any source) and die. What is particularly unjust in this case is that Ritchie's family and attorneys should receive a $5 million award while others whose family members died of overdose of the same or similar drugs receive not a penny simply because the decedent did not have the consideration to visit a doctor beforehand.
Implications for independent examiners (Good news and bad news):
The good news: HIPAA requires covered entities to provide records to examinees. Insurers often demand that examiners refrain from releasing reports, and some state statutes support that position. Examining physicians are caught in the middle. This appellate opinion suggests that independent examiners should inform examinees of important findings. In my experience most examinees obtain copies of reports eventually anyway. Making release of such records standard practice would simplify the work of independent examiners.
Of course while this sounds simple in theory, attempting to establish policies for putting this into practice raises more questions. Physicians may no longer be caught in the middle, but given that a physician intends to share a finding with an examinee, how will this be accomplished without establishing a physician-patient relationship, further muddling the line between the two roles? This could lead to reduced credibility and objectivity in examiners and, worse, sloppy attempts to fulfill the role of treating physician. Will it be sufficient to provide a copy of the report to the examinee? Standard of care may require that the physician meet face to face with a patient to deliver bad news about diagnosis, and answer questions. How will examiners accomplish this? Who should pay for the contact? How should it be documented? Will this create added duty? and added liability? Will it suffice to recommend that the examinee seek follow up care with another physician who may have access to the examiner's report?
The remedy for independent examiners:
- Warn all examinees not to rely upon the opinion.
- Warn all examinees to obtain second opinions from their own physicians.
- Professional liability premiums and worker's comp insurance premiums will increase.
- The cost of independent examinations will rise.
- Physician's fees will increase.
- Physicians will seek to avoid entanglement in similar cases by whatever means they can.
Had Mr. Ritchie applied for insurance after his injury and described his symptoms on the application, the insurer might deny coverage because of the preexisting illness or, if he concealed the symptoms, argue that he should have sought medical care for his symptoms in canceling his policy or denying coverage for a preexisting condition. Is it fair to apply a different rule where Dr. Krasner is concerned? Hardly.
As I write this Congress moves toward health care reform which could prevent cases like this. This case might never have occurred were it not for the fact that Ritchie lost his coverage, presumably while losing his job. He would not have had to prove an industrial cause of his symptoms in order to obtain care from his own physician.
Independent examiners for worker's compensation should not have to determine whether a worker will have medical insurance or not. They should determine only who will pay: the industrial fund or ordinary health insurance.
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