Thursday, November 8, 2012

When Law & Medicine Are At Odds

One of the things that frustrates physicians in the workers' compensation system is how the law plays with their opinions and services.

Physicians are trained in logic - their actions generally are based upon some process of scientific approach (and yes, the science changes...).

Medical science is the ability to prove with statistically significant reliability that when X happens, Y is the result. It's all in the numbers. That's why medicine has treatment guidelines. In general some element of scientific evidence supports guideline recommendations.

Law has a different logic to it and it is foreign to physicians - indeed, law is all in the words.

Medicine and law speak English, but the dialects are different.

This is particularly true in workers' compensation which is a complete fiction - it has no basis in common law. It is solely the product of legislative construction built upon a foundation of political exercise.

Which is why workers' compensation tends to produce situations that seem illogical to physicians, but perfectly logical to lawyers.

A Florida case highlights this.

In Florida an employer "has the right to transfer the care of an injured employee from the attending health care provider if an independent medical examination determines that the employee is not making appropriate progress in recuperation" (Florida Statutes Section 440.13(2)(d)).

Maggie Avery suffered a severe concussion and psyche injuries after being exposed to a flash grenade while working undercover as a police officer in a narcotics bust in January 1993 for the City of Coral Gables, and further psychological trauma from a shooting that took place in April of the same year.

The City stipulated that Avery reached maximum medical improvement in August 1994 and was permanently and totally disabled.

Avery began treating with Dr. Ramon Pino, a psychiatrist who initially diagnosed her with mood disorder, recurrent major depressive disorder – moderate severity with anxiety, insomnia and post-traumatic stress disorder. He changed his diagnosis in 2004 to mood disorder and severe clinical depression.

Pino referred Avery to Dr. Grant McDougall for psychotherapy in April 2001. She proceeded to see McDougall up to four times per week over the next eight years, while continuing to see Pino on a monthly basis.

In May 2009, the City of Coral Gables asked Avery to see Dr. Richard Greer, a psychiatrist, for an independent medical examination. Greer opined that Avery's treatment with Pino and McDougall was excessive and unwarranted to treat her depression and anxiety. He recommended only one visit with a physician every three months.

Based on Greer's report, the city informed Avery that it was transferring her psychiatric care from Pino and McDougall to Dr. Michael Amiel, pursuant to Florida Statutes Section 440.13(2)(d).

Avery objected but the Judge of Compensation Claims approved the city's deauthorization of Pino and McDougall as Avery's treating doctors.

On appeal the 1st DCA reversed because, since Avery had already reached maximum medical improvement (MMI), there could not be any further improvement by changing physicians.

By definition, once a worker MMI, the court explained, that worker's condition cannot be reasonably expected to improve. Any care the worker receives after reaching MMI necessarily becomes "palliative."

One can not dispute the court's logic. That's what the words mean. By the same token, from a practical standpoint one should expect some measurable benefit to ongoing treatment - in particular four times a week over the course of 8 years, as in this case.

If this were in a general health setting there would be no such thing as MMI and a regimen of psychotherapy of four times a week would not be tolerated or approved without a demonstration that something good was happening.

Now, it could be that this case was just about the cost of treatment.

It could also be that the City was genuinely concerned that Avery wasn't getting quality care.

Or maybe a combination of both. The City is probably just looking for some evidence that the treatment they are paying for is actually doing something - that there is VALUE being provided.

In either case I'm sure that most physicians would shake their heads in disbelief and point to this case as one where accountability to both the injured worker and the employer went out the window.

While the treatment in this case likely is not doing harm to the person, it doesn't seem to be beneficial either.

But, the law is the law and medicine is medicine. Sometimes they intersect nicely, and sometimes they don't.

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