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UR Doctors to be Liable in Civil Claims?

Hello, dear readers!  A happy Monday to you, indeed.  And, to make this a particularly special Monday, your humble blogger brings you this tale of horror emerging from the dungeon that is workers’ compensation.

Recently, the Court of Appeal issued an opinion in the matter of King v. Compartners IncIn King, the Court of Appeal granted leave for plaintiff to amend his complaint to possibly survive the demurrer granted to the defendants.

Mr. King sustained a back injury in 2008, and then sought treatment for anxiety and depression resulting from the pain.  His treating physician prescribed him medication for this condition, and it was provided by the workers’ compensation carrier for about two years before a UR determination issued decided that it was not medically necessary.  As a result, Mr. King was suddenly taken off the medication (which usually is done by gradual means).  The withdrawal symptoms included seizures and resulted in physical injuries.

A second UR request was performed, and again determined that the medication was unnecessary.

King ultimately sued both UR reviewers, as well as the UR review vendor, for negligence, professional negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress.  The defendants argued that no duty of care was owed to Kirk by the UR physicians, and that the workers’ compensation act preempts such a tort claim.

In considering the case, the Court of Appeal sustained the grant of the demurrer, but reversed the trial court’s ruling denying plaintiff leave to amend his complaint.  The theory is, of course, the harm caused by the UR physician’s failure to either authorize the medication or recommend a gradual weaning was a separate tort, completely free of the workers’ compensation claim.  In theory, really, if this tort could proceed, to the extent that the workers’ compensation claim is aggravated, the workers’ compensation insurer might have a subrogation claim, so long as the third-party tort is one of negligence and not of medical malpractice (Civil Code section 3333.1)

The Court of Appeal opinion also addressed the issue of duty, coming to the conclusion that the UR physician owes a duty of care to the injured worker.  However, the level of that duty, whether it is simply not to be negligent or the duty of care expected of a treating physician, depends on the facts, which were not adequately articulated.  Much like with the issue of liability, the Court of Appeal ruled that a demurrer should be granted, but with leave to amend.

Perhaps we’ll get to see what happens to this case down the road, but it’s a scary thought – are the attorneys likewise to be held liable for failing to suggest a weaning off from drugs?  Will treating physicians be liable for failing to timely and thoroughly respond to a UR reviewer’s request for additional information pending a UR determination?

California’s employers, long ago, struck a bargain with California’s employees – what happens in comp stays in comp.  But now the players are creating plot twists – evil twin brothers of claims and secret passage ways – that’s cheating!  And, if UR vendors must now set aside funds to cover or insure against the risk of such torts, UR prices will go up, which, of course means more expenses and thus higher premiums for policy holders.

On the other hand, it might make sense to be aware of the drugs that have serious withdrawal symptoms, and simply modify requests to allow a weaning.  Remember the McCool case?  There, the WCAB held that although UR might be valid in denying certain medication, the audit unit is not bound by UR and might impose penalties for exposing an injured worker to dangerous withdrawal symptoms.

This is also a good opportunity to point out that there are other people involved in this process: adjusters, nurse case managers, defense attorneys, even applicants’ attorneys!  Any one of them might notice this and demand a weaning schedule.  Perhaps we’ll all get sued at some point?

Toodles, dear readers – until next time!

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  1. Carl Taber
    January 11th, 2016 at 10:33 | #1

    While a nice idea in theory, the ability to subrogate against a medical malpractice claim for worker’s compensation injury aggravations has been prohibited for more than a quarter century. Take a look at the case of Graham v. WCAB (1989) 54 CCC 160.



    • Gregory Grinberg
      January 11th, 2016 at 15:58 | #2

      Hi Carl – although it’s true that medical malpractice cannot be the subject of a subrogation claim in California comp proceedings, if the tort theory is one of common negligence, perhaps subgrogation could proceed. For example, if a WC claimant is the parking lot of his treating physician’s office when the treating physician accidentally strikes him with his car, this isn’t an issue of medical malpractice, but common tort that occurs at the hands of the person who happens to be the treating physician.

      If the UR physicians are just negligent in failing to advise of the risk of withdrawal symptoms, rather than breaching a duty of doctor’s care, perhaps there is a subrogation potential after all?

  2. Steve Cattolica
    January 11th, 2016 at 12:42 | #3


    We were interested to find out that it is historically common-place for UR companies to require their contracted UR physicians to carry malpractice coverage that protects them as UR physicians. Seems there must be a reason for that. Perhaps it is because the Medical Board of California has considered utilization review the practice of medicine since 1998. “King” may help clarify the issue further.

    • Gregory Grinberg
      January 11th, 2016 at 16:01 | #4

      Hi Steve – thanks for the comment!

      I would submit that even if we were to acknowledge UR physicians as “practicing medicine” that does not necessarily mean that they develop a duty of medical care towards the applicant. The King case cites the Tarasoff case from 1974, where the issue of whether a psychiatrist has a duty to warn the intended victim of his patient was discussed. Here, even if the UR physicians are practicing some form of medicine, the question remains as to whether they should be held liable as if the applicant’s own treating physician had failed to recommend a gradual tapering off of the the relevant drugs.

      The malpractice issue is an interesting one as well.


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