Thursday, March 16, 2017

Medical Review and Qualifications

At a conference years ago, I recall Judges and administrators around a large table discussing what they perceived as the challenge of adjudicating medical disputes. Some lamented that they "were not doctors," and described a perceived shortcomings in their skills to determine such disputes. Several state's adjudicators and administrators expressed their desire to determine such claims in novel ways; they sought to have doctors make medical decisions instead of judges. Louisiana took a somewhat unique turn with its workers' compensation system a few years later. 


I learned about Louisiana's medical dispute resolution process at a similar conference. The proponents of various "resolution processes" for medical claims presented and discussed their solutions. There was the recurrent theme of medical disputes being reviewed medically, through programs like "independent medial review" or "IMR," "independent review organizations," or "IRO," and more. Typically, these programs involve the engagement of a panel or list of physicians to resolve medical disputes. The Louisiana program was also discussed in detail, as was the Florida "expert medical advisor" or "EMA" process. 

The 2009 Louisiana legislative reaction was to codify a process for a single medical doctor to make decisions regarding medical care disputes. It is not uncommon for states through processes like IRM, IRO, EMA and others, to engage a physician panel for dispute resolution. But the Louisiana system engages no panel of physicians, but "a" physician. The process is reliant upon the medical director employed by the Louisiana Office of Workers' Compensation. I recall my first thought about this plan, the significant workload that would be for one person.

That Louisiana process was declared unconstitutional in June 2015, and a preliminary injunction issued by a civil trial judge foreclosed the process. It remained in effect pending appeal. An appellate court reversed that decision based upon the judge's failures in his order. I noted in Another Statute Unconstitutional that judges should draft their own orders. The Louisiana judge did not and the order prepared by counsel did not stand up to scrutiny. It did not make the requisite findings. 

The recent news in March 2017 from WorkCompCentral was that this constitutional challenge has now run its course and the same trial judge has issued a Permanent Injunction Against Medical Directors Making Treatment Decisions. The injunction forbids "the state workers' compensation agency's medical director from making final decisions on injured workers' treatment." 

I read the decision, and it is not an order, but a "Judgment." It has no findings of fact or analysis of either a constitution or statute(s). It is perhaps the epitome of conclusory. It provides the reader with nothing except the conclusion that the Louisiana medical review process is not constitutionally worthy and that it shall stop. It is unfortunate that the trial judge elected not to provide any details that might allow better comprehension of the why and how. Part of a judge's job is to explain decisions. This benefits the parties and the community at large.

The Judgment says Louisiana shall be "permanently enjoined, restrained, and prohibited" from:

Applying and/or enforcing 40 LAC §2715(L)
and
allowing anyone to attempt to communicate with judges of the Office of Workers' Compensation regarding pending workers' compensation claims
and

enforcing the statutes and regulations which establish the system for the administrative determinations of form 1009 claims for medical benefits for injured workers by a medical director employed by the Office of Workers' Compensation
The enjoined statutes and regulations are
1. La. RS. 23:1203.1(J)(1), (K), (M);
2. La. R.S. 23:1314 (D)-(E)(1) inclusive;
3. 40 LAC 2715(B)(3),(d),(e),(f); and
4. 40 LAC 2715(E)(2),(F),(H),(I),(J),(K) and (L).
The argument voiced by challengers in Louisiana is that it is unconstitutional "for a medical director to be making quasi-judicial decisions." According to press reports, the foundation of arguments against the process, at least in part, centered on the qualifications of the medical director generally, not necessarily the current official serving in that capacity. 


According to WorkCompCentral on March 8, 2017, the challengers raised as illustration that the current director is an internist. In this case, the challengers argue, that physician is "making decisions about whether a neurosurgeon's recommendation is going to be reviewed." In other words, should one specialty be reviewing the conclusions of some other specialty and making decisions about medical care? One might argue that the internist in this example is far better qualified for such a decision than a lawyer who has become a judge. Internists are not neurosurgeons, but neither are lawyers.

I am reminded of a series of television ads a few years back in which people injected themselves into the solving of various urgencies. Asked about their individual qualifications, they would deny education or experience, but assure their expertise by explaining the great night's sleep they had the night before at the advertiser's hotel: "no, I am not a doctor, but I did stay at a _______ hotel last night." It was a catchy ad and garnered significant quotation in pop culture and on the lecture circuit. Are we similarly saying "no, I am not a doctor, but I did go to law school?"

In this regard, there will be those who may perceive parallels with the current Florida statute and the delegation of judicial decisions, in part, to expert medical advisers. See Not with a Bang, but with a Whimper.

In Louisiana the medical decisions are made by a physician employed by the state. An independent physician with no interest in the outcome of the litigation, much like the independent judge. Of course the medical director cannot be a specialist in all fields of medicine, but she/he is a medical doctor with expertise in medicine that a judge lacks. The Louisiana challengers and trial Judge Donald Johnson conclude that lawyers/judges with no medical training have superior qualifications to make medical decisions. It is curious that they fault the qualifications of a particular physician and advocate that determinations should instead come from officials with absolutely no medical training or background.

The Florida EMA process is similar. Though there is no state official "medical director," the legislature has concluded that medical disputes shall be resolved by medical doctors. The law mandates the appointment of an EMA for any dispute. But, in a dispute between two neurosurgeons, a Florida judge could appoint an internist. In a dispute between an internist and orthopedic surgeon, the Florida judge could appoint a neurologist. The Florida judge can appoint any physician that the Judge deems appropriate. And, upon what evidence should such a selection be based? Should the testimony of the two disagreeing experts be considered? What if they disagree on what specialty should break the disagreement, must an EMA be appointed to choose the expertise of the EMA? Herman Melville once said "of all the preposterous assumptions of humanity. . . ."

These recent developments in Louisiana are interesting. The perspectives on the appropriate roles for lawyers, judges and doctors are fascinating. There will be ongoing debate. But, the Louisiana OWC is appealing Judge Johnson's decision. I suspect it will be a year before we learn of the ultimate outcome, and somewhat suspect that the brevity of his "judgment" bodes ill for the challengers. Because the judgment provides little in the way of factual findings and explanation, further analysis of probabilities is futile. Only time will tell.

Whether Florida will face similar challenges to its EMA statute likewise remains to be seen. Doctors know nothing of due process and weighing of evidence. Perhaps lawyers and judges likewise know nothing of medicine. In the end, perhaps there is no perfect solution and we will collectively conclude that our flawed (from whatever perspectives) solutions are somehow the best of uniformly imperfect alternatives? Perhaps constitutionality comes down to something less than perfection?


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