Thursday, August 27, 2015

The Judge, The Doctor, The Patient: Who Should Decide?

Why is it that we have such a hard time in workers' compensation breaking free of the concept that judges shouldn't be making medical decisions?  And why do the judges making these decisions fail to recognize the unintended (and negative) consequences of their actions?

Enter Judge Donald Johnson of the 19th District Court in Louisiana.  Judge Johnson recently ruled that the state's approach to dispute resolution surrounding injured worker treatment requests is unconstitutional based on the fact that patients are being deprived of due process rights.  Since 2011, treatment requests from workers injured in Louisiana that are denied by utilization review are ultimately adjudicated by the medical director at the Louisiana Office of Workers' Compensation (OWC).  This way, a physician ultimately decides the applicability of the guidelines given the individual injured worker's clinical circumstances.

Judge Johnson has now suggested we go back to judges making these decisions instead.  I call it a "suggestion" because his decision isn't being enforced until the Supreme Court weighs in (likely some time in the next year).

And the usual suspects have taken their usual positions:

Payers are obviously displeased.  Medical costs had decreased and disability benefits had stabilized in the last few years in Louisiana.  The medical treatment guidelines and dispute resolution process put in place in 2011 appeared to be working.  

Plaintiff's attorneys are celebrating the decision.  Now that they have a shot at going back to the old way of resolving treatment disputes (i.e., requesting a hearing with an administrative law judge at the OWC), there's increased likelihood of care being delivered that's not in alignment with evidence based medicine.  Forget that several defense attorneys have observed that the new process actually resolves disputes faster than the hearing/ALJ approach.

This happens again and again as reforms are enacted to move medical decisions away from judges and back with doctors (where they belong).  Judges routinely attempt to take that power back.  Recall this same debate in California over the Dubon decision?  

Injured workers are best served by medical doctors making medical decisions.  Sometimes, that will involve multiple medical doctors: the treating physician, a peer reviewer, and perhaps the medical director of OWC.  And those doctors may not agree with one another.

But isn't an informed dialog and exchange of information among a group of physicians a vastly superior way to reach the right medical decision than relying on a judge to collect medical opinions, and with no medical expertise, decide which opinion should prevail?  

On Twitter @PRIUM1

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