MCN | Medical Consultants Network

The Power of a Second Look

Home / MCNTalk / Tag: Legal Issues

Viewing items tagged:

Legal Issues

Most violent job in Washington? Nurse’s aide

The most violent job in Washington state isn’t being a police officer or a security guard. It’s working as a nurse’s aide.

Seattle public radio station KUOW-FM made that finding as part of an investigative series on workplace safety airing this week, as noted in this Seattle Times article. The station found that violence strikes health care workers in Washington at six times the state average, and frontline caregivers in emergency rooms and psychiatric wards get assaulted even more than that.

The single most violent workplace in the state is at Western State Hospital, where criminal defendants are taken when they are found incompetent to stand trial. Workers at psychiatric hospitals are assaulted on the job more often than anybody else – 60 times more than the average worker in Washington state.

How many is that? James Robinson, president of the union for many workers at Western State Hospital, says there were 313 assaults there last year – a drop of nearly 30 percent in assaults per patient-care hour, though union officials also note that many incidents go unreported because of the time required to fill out paperwork about assaults.

Nan Yragui, a psychologist with the Department of Labor and Industries, studies workplace violence. She said budget cuts to the health-care safety net have made emergency rooms nationwide more violence-prone.

“When patients can’t get services they need, they end up going to the emergency department,” she said. “So more of the severely mentally ill are going to the emergency department and then that makes that group of nurses more at risk because they’re getting more exposure.” Read more…

Panel urges crackdown on excessive MRIs

As noted in this Seattle Times article, an influential independent congressional advisory group is urging lawmakers to crack down on doctors who order too many MRIs for seniors, setting off a battle with physicians and patient groups that argue that Medicare beneficiaries might suffer significant delays in treatment.

The recommendation by the Medicare Payment Advisory Commission, or MedPAC, would require some physicians who order a lot of MRIs, CT scans, nuclear-medicine studies and other imaging tests to obtain pre-approval from Medicare.

In its latest report, sent to Congress this week, MedPAC takes aim at doctors who order these tests inappropriately and concludes that Medicare costs for such tests are surging partly because physicians are buying their own high-tech equipment. When they can perform diagnostic tests in their offices, they pocket the profits.

How much do imaging costs impact Medicare? Imaging is one of the fastest-growing Medicare costs, rising from $6.5 billion to $11.7 billion from 2000 to 2009, according to federal figures. Industry groups say the use of imaging services declined from 2008 to 2009, but MedPAC disputes that data and counters that usage is on the rise. While a 1989 law prohibited physicians from referring patients to testing centers in which they had financial interests, it didn’t stop them from performing tests in their offices.

As a side note to this article, MCN does not own any X-ray or imaging facilities and must approve such studies when performed by consultants. Imaging and X-rays are needed in fewer than 5% of orthopedic and related IMEs performed by MCN. If you find that a particular IME physician or provider orders studies at a higher rate, questions are warranted. Does the provider have a financial interest in testing facilities or equipment and is the study truly necessary to render a credible report?

Read more…

As Physicians’ Jobs Change, So Do Their Politics

At MCNtalk, we try to stay away from political discussion,  but we thought this article in the New York Times was interesting as it highlights some potential shifts in the medical profession. Specifically, “Doctors are changing. They are abandoning their own practices and taking salaried jobs in hospitals, particularly in the North, but increasingly in the South as well. Half of all younger doctors are women, and that share is likely to grow.”

There are no national surveys that track doctors’ political leanings, but as more doctors move from business owner to shift worker, their historic alliance with the Republican Party is weakening from Maine as well as South Dakota, Arizona and Oregon, according to doctors’ advocates in those and other states. And why is this important?

  • As the article notes, that change could have a profound effect on the nation’s health care debate.
  • Because so many doctors are no longer in business for themselves, many of the issues that were once priorities for doctors’ groups, like insurance reimbursement, have been displaced by public health and safety concerns, including mandatory seat belt use and chemicals in baby products.

Read more…

Disability-Claim Judge Has Trouble Saying “No”

Americans seeking Social Security disability benefits will often appeal to one of 1,500 judges who help administer the program, where the odds of winning are slightly better than even. This article in the Wall Street Journal* explores the decisions of one particular judge in the system, David B. Daugherty, who maintains a slightly different record: In the fiscal year that ended in September, the administrative law judge, who sits in the impoverished intersection of West Virginia, Kentucky and Ohio, decided 1,284 cases and awarded benefits in all but four. For the first six months of fiscal 2011, Mr. Daugherty approved payments in every one of his 729 decisions, according to the Social Security Administration.

Mr. Daugherty has said every decision he makes “is fully supported by relevant medical reports and physical and/or mental residual functionary capacity assessments from treating or examining doctors or other medical professionals.”

For some, applying for benefits can be an agonizing process that takes more than two years. Benefits are modest—they can run around $1,000 a month—but come with access to government-run health plans Medicare and Medicaid. Analysts estimate the total package costs $300,000 over a beneficiary’s lifetime.

In a brief telephone interview in April, Mr. Daugherty blamed high poverty rates especially in Eastern Kentucky for his large case load and high approval rate.

“People would really be surprised at how little education those people have,” he said. “If they have a fourth-grade education, they couldn’t get a job if their lives depended on it.” Read more…*

*this link to the Wall Street Journal article will be good through 5/26/11.

Revisiting IME Ethics and standards

Revisiting IME Ethics and standards

As founder of MCN and a practicing physician, I am proud of what we do as a company and hold high expectations for ourselves, our consultants and indeed our clients. I write this note with a bit of trepidation, but I have never been known as one to shrink from issues.

What I am addressing is by no means the norm in many or most cases, but there are ethical situations that should not be part of our industry, even at the smallest level. Please review this post in the spirit that it is meant – to improve what we do. Please don’t shoot the messenger. But by all means, feel free to comment on this posting, or privately to me.

It has been almost two years since a major expose in the New York Times regarding certain practices in that region.  For those who wish to read this series, please visit:

http://topics.nytimes.com/top/reference/timestopics/subjects/w/workers_compensation_insurance/index.html this page has all the links. Here are links to the individual articles over 3 days:

http://www.nytimes.com/2009/03/31/nyregion/31comp.html?ref=workerscompensationinsurance

http://www.nytimes.com/2009/04/01/nyregion/01comp.html?ref=workerscompensationinsurance

http://www.nytimes.com/2009/04/02/nyregion/02comp.html?ref=workerscompensationinsurance

To my knowledge the matter to a large degree “blew over” in that I am not aware of any significant regulatory or other outcomes on this issue or sanctions against the company featured, though I have heard that they have changed names.

I believe that it may be time to revisit standards in performance of IMEs, especially in regions of the country where we have observed that certain practices that we regard as improper and indefensible may indeed continue to be practiced by certain consultants and IME companies. Not asking, for example, how it can be that they receive and accept examination reports at price points, length and quality that would not be possible elsewhere in the country.  All clients deserve the highest quality standards from those they rely upon for important services, which in the case of IME’s means unbiased, thorough, evidenced-based assessments performed by engaged and dedicated consultants.

With recent disruption in the industry, including a very large consolidation of a number of smaller companies, it is our hope that those who oversee large numbers of IMEs will endorse some or all of the points we are raising, and take appropriate actions in their own companies to insure integrity in all exams. Likewise all doctors who examinations must perform at the highest medical standards and not allow a lower standard for IME’s.

The basic principle is to do right by clients, claimants and society. And since we facilitate medical examinations, let doctors do their jobs properly and insist that high standards be followed and maintained.

Clients who order exams generally receive quality exams, but they should still ask questions if they see possible issues, and use common sense. Doctors who do exams, whocan’t or won’t practice in a way that treats each claim and claimant as individuals, with respect and dignity, give the process enough time, write original reports where critical thinking is employed, and remember why they entered (or should have entered) the profession, should not do exams. There are certain acts that MCN finds unacceptable. We believe all involved in the business should feel likewise and take appropriate measures to ensure that substandard performance does not occur. In no particular order they include:

Exams that are too brief: We believe that a reasonable rule of thumb is that an IME should take no less than 30 minutes— and often much longer—to perform. We generally schedule an hour in our own facilities, sometimes a bit less, but never more than two an hour, and we question at times whether this is optimal. The time must allow for review of appropriate records, a history from the claimant, a focused and appropriate physical or mental status examination, and an original report. We have observed with our own eyes the extreme of the company cited in one of the articles I liked cited above scheduling 12 exams in an hour, with an expectation of perhaps 4 no shows and therefore approximately 8 exams to be done. This timeframe is simply impossible. Further, I think that it is also impossible to do 4 proper exams in an hour. Attempting to cut corners on time does not work; it leads to claimants who feel rushed and not heard, reports that are shoddy, and conclusions that are inarticulate if not inaccurate.

Use of Boilerplate in substantive content areas: The history, examination and conclusions must be original. Templates can provide a framework to follow or serve as an introduction or disclaimer. But the words used in an exam should be original. Measurements should be real and reflect human variation. Normal findings if quantified should reflect a range of normal. While a 90 degree flexion for example, might be normal, normal flexion will be vary from 90 degrees, while still in a normal range. So the number would be expected to not be 90. Yet I have observed reports where normal variation appears absent. No two exams should ever look the same in language when it comes to the history, examination or conclusions.

Reports that are too brief: I am not prepared to state how long an exam should be, but can state with a high level of comfort that an assessment of a complex injury with records to review, a history to cite and an examination and assessment to record generally ought to be more than 2-3 pages.

Ghost-writing of reports or examination performance: It is the physician’s job, and his/her’s alone, to take the history, review records, perform a substantive examination and issue the final report. And it should be the physician contacted for the exam who completes this work. It may not be delegated. While rare, we have seen instances where this is not followed, despite clear guidelines on the matter. The physician must not sign their name on the work of others. While it may be the practice of a particular physician to delegate certain practice tasks, that is not the standard in IMEs, and certainly not something to be imposed upon an unaware client or IME company.

Ordering unnecessary tests, especially when personal or corporate gain may be involved: It is no secret that society has been looking very carefully at real or perceived conflict of interests in medical services. Fortunately our clients call us and ask for exams and we don’t drive the demand. But we do expect that consultants make a determination as to whether a particular study is needed. Interestingly, when it comes to typical orthopedic type examinations, we find that the common frequency of ordering of studies in situations where testing is not on site is less than 5%. However we have learned that in situations where physician practices or certain IME companies have X-ray equipment on site, the incidence of use increases to approximately 35%. This is a massive variable and suggests that something may be amiss. The only indication for a study should be if it is necessary for a quality report. Often it is not, or prior studies are more than adequate. If a consultant is ordering common films uncritically, or clients see this taking place, questions should be asked. We believe that clients should consider exercising the option of requiring approval for studies, to insert a bit of friction in the process, especially if X-rays appear to be a norm with a particular setting, consultant or company.

Think about the New York Times test: The homily that one should never do something that they would not mind seeing on the front page of the New York Times holds true. And as you can see above, aberrant behavior in our field made the front page two years ago. Or to frame this in another manner, don’t do anything in our businesses or tolerate practices that we would not subject our immediate family members and best friends to. Some of what I have observed over the years would suggest that if this were the case, some people really dislike their friends and families, to allow certain practices to not only take place, but persist.

Some of these practices have been defended on the basis that questionable claims and claimants may justify them. To this I only can shake my head. Yes there are questionable claims and claimants but this in no way justifies lowering our standards of dignity and respect for what we do as physicians and companies.

Other justifications have included the belief that this is what the client wants and that they are price sensitive and therefore a hurried approach, done cheaply and below standard is therefore acceptable. I don’t believe that clients want claimants to be mistreated, and while price may be an issue, clients realistically understand that quality does carry a price and one can’t cut corners in key areas and achieve a defensible and acceptable product. I believe there may be business risk in the long-term if questionable practices are tolerated. Also, the practice of medicine is the province of physicians, and just as a client would not tell a doctor how to provide treatment, the client hopefully should rely upon ethical and trained physicians to be the final arbiter on examination performance and quality.

The consequences of inattention to ethical medical examination practices creates an uneven playing field in the provision of IME’s; those who do quality work and those who don’t. Some IME provider will take a pass on work at a price that could only be provided sub-optimally. Fortunately we at MCN and many of our ethical competitors are blessed with great consultants and clients who value integrity in the work they do and the examinations they expect. We as a company will continue to strive for the highest standards of integrity. We invite all consultants, clients and competing companies to set similar bars of expectation.

In closing, I invite a dialogue, comments, even respectful challenges to these ideas. We also may have missed some additional issue and areas bearing attention. Please raise them.

Brian L. Grant, MD

Chair and Medical Director, MCN

Fight Over a Fix for Florida “Pill Mills”

Per this Wall Street Journal article, Florida Gov. Rick Scott’s call to cancel a state drug-monitoring program has sparked an uproar in Appalachian states that say they are deluged with illegally bought pills from South Florida pain clinics.

Supporters of the program, which has yet to start operating, say it would help combat Florida’s “pill mills”—shady storefront operations that provide a bounty of prescription drugs, such as oxycodone and hydrodone, for addicts and traffickers. The tracking system would include a centralized database to help identify buyers who are accumulating large numbers of pills and the doctors who are over-prescribing them.

Florida, like most states, is facing a large budget deficit—in their case, to the tune of $3.6 billion. When the bill which established the drug-monitoring program was passed in 2009, the state envisioned that the program would be funded through federal monies. This hasn’t been the case, but given the size of the problem and its effect on neighboring states, the “pill mill” situation in Florida is of pressing concern to many throughout the region.

Pill mills have flourished in Florida, especially in Broward County, in recent years. Weak standards governing who can set them up, a lack of oversight by state agencies and the absence of a prescription-monitoring program have contributed to the problem, said Sherry Green, chief executive of the nonprofit National Alliance for Model State Drug Laws.

According to the Florida attorney general’s office, clinics are often cash-only enterprises employing doctors who write prescriptions for painkillers without examining patients.

They have proved to be a magnet for buyers in the Southeast. According to Frank Rapier, director of the Appalachia High Intensity Drug Trafficking Area, highway patrol officers in hot spots like eastern Tennessee routinely stop vanloads of people returning from Florida with fresh stockpiles of prescription drugs.

In West Virginia, state Sen. Evan Jenkins said flights on discount airlines between Huntington, W. Va., and Fort Lauderdale, Fla., have been dubbed the “Oxycontin Express.”

States in the region have been cracking down. Kentucky created one of the first prescription-monitoring programs in the country in 1999. The system has helped stamp out the sort of storefront businesses seen in Broward County, according to Keith Humphreys, a Stanford University researcher who has studied the programs. In all, 34 states have implemented them. Read more…

2011: the Year of the Drone?

Personal drones aren’t yet plying U. S. flyways. But an arms race is building among people looking to track celebrities, unfaithful lovers or even wildlife. Some organizations would like them for emergency operations in areas hit by natural disasters. Several efforts to develop personal drones are scheduled for completion in this year, per this Wall Street Journal article.

Drones now are associated with the unmanned Predator craft the Central Intelligence Agency uses to fire Hellfire missiles at militants in Pakistan’s tribal areas. But the essential technology is increasingly available beyond military circles, and spreading fast. An unmanned aircraft that can fly a predetermined route costs a few hundred bucks to build and can be operated by iPhone.

The implications for personal privacy and the use of drones are immense. For now, the Federal Aviation Administration limits domestic use of drones to the government, and even those are under tight restrictions. FAA spokeswoman Laura Brown said the agency is working with private industry on standards that might allow broader use once drone technology evolves. When it comes to paparazzi use of drones, she said, “our primary concern with that would be safety issues.” New York divorce lawyer Raoul Felder puts the concerns into perspective  “If the Israelis can use them to find terrorists, certainly a husband is going to be able to track a wife who goes out at 11 o’clock at night and follow her.” Read more…

Sex, Lies and Videotape – and the Internet


We hesitated a bit before posting this. It is not often that we can see a combination in one event that includes the perils of the Internet, workers’ compensation, dishonesty, and perhaps human greed combined with ignorance.

We find these cases interesting on a social level. Typically the amount of money misappropriated in cases like this of probable malingering is in the tens or hundreds of thousands; an amount that would result in criminal charges if a person walked into their employer or someones else’s house and stole it. But in the case of clear and convincing evidence that an individual is faking injury or extent of injury, denial of subsequent benefits or as in this case, payback of prior payments seems more common. What is the difference between this situation and theft and why is prosecution not the norm?

While the majority of claims are valid and respond to appropriate treatment and rehabilitation, cases of fraud and malingering when they occur are costly and troublesome, and underscore at times larger social issues. This case also underscores the value of searching for information about claimants that are not under their direct control in the medical context. Historically this involved surveillance, but as this case demonstrates, the Internet – typically social networking sites, often provides a wealth of intentional or unintentional self-disclosure.