An injured worker will get another chance to make his case that an alleged injury induced by his withdrawal from a drug halted through utilization review should proceed outside the workers’ compensation system. Though the worker had not yet pleaded sufficient facts, the Court of Appeal said in a recent ruling the law supports his attempt to try again.
(As frequently happens in appellate decisions, all the facts relied on by the court come from the plaintiff’s allegations; though the defendants argued the law merits a dismissal, they have not yet had the opportunity to rebut the plaintiff’s alleged facts.)
In 2008, plaintiff Kirk King sustained a back injury at work. Three years later, Mr. King suffered anxiety and depression from the chronic pain from his back injury and received a prescription for Klonopin. The Klonopin was provided to Mr. King through workers’ compensation, which in 2013 conducted a utilization review to determine whether the drug was medically necessary. Dr. Naresh Sharma, an anesthesiologist, conducted the utilization review and determined that the drug was unnecessary and decertified it. A psychiatrist who conducted another review reached the same conclusion.
Mr. King claims that the denial required him to immediately stop taking Klonopin and that the sudden cessation caused him to suffer four seizures, resulting in additional injury. Mr. King sued CompPartners, Inc. and Dr. Sharma for both professional medical negligence and general negligence.
The defendants argued at the trial court that Mr. King’s claims are pre-empted by the Workers’ Compensation Act because they arose out of utilization review in connection with his original workplace injury. They also argued that Mr. King and the defendants did not have a physician-patient relationship (and thus no duty) because the defendants never personally examined or treated him.
Mr. King (whose wife is also a plaintiff) argued that he was not disputing the decision to decertify Klonopin. Rather, his claims centered on the failure to provide him with a Klonopin-weaning regimen. This allegation, according to the Kings, fell within the ambit of a negligence cause of action – and outside a dispute over a workers’ compensation utilization review decision. In other words, the Kings contended, the dispute is not over the denial of the drug but rather over the decision by Dr. Sharma to abruptly stop the Klonopin rather than gradually stopping it. The trial court judge dismissed the Kings’ lawsuit, but in doing so said the matter “needs to go up to the Court of Appeal. There is really no good law, any much law” on utilization review.
The Fourth District Court of Appeal in King v. CompPartners, Inc. noted that the law on collateral injuries in workers’ compensation holds that if an alleged injury can be separated from the original workplace injury, it will not be pre-empted by workers’ compensation.
“To the extent the Kings are faulting Sharma for not communicating a warning to Kirk, their claims are not preempted by the WCA because that warning would be beyond the ‘medical necessity’ determination made by Sharma,” the appellate court said in favor of allowing the Kings to add further facts to their lawsuit.
The court also found in favor of the Kings on the issue of duty of care – to a point. “Case law provides a utilization review doctor has a doctor-patient relationship with the person whose medical records are being reviewed,” the court said, citing a case from 2002, Palmer v. Superior Court.
“However, the existence of a duty does not mean ‘a doctor is required to exercise the same degree of skill toward every person he sees,’” the court said, citing the major case from 1977 on the issue, Keene v. Wiggins. “‘The duty he owes to each varies with the relationship of the parties, the foreseeability of injury or harm that may be expected to flow from his conduct, and the reliance which the person may reasonably be expected to place on the opinion received. A case-by-case approach is required.’”
The appellate court said the Kings should be allowed to amend their complaint “because it is possible, given the allegation that [Dr.] Sharma was the only doctor involved in the decision that, when more details are provided they could support a conclusion that, under the circumstances, the scope of [Dr.] Sharma’s duty included some form of warning Kirk of or protecting Kirk from the risk of seizures.”
Gordon Ownby is CAP’s General Counsel. Comments on Case of the Month may be directed to gownby@CAPphysicians.com.