I set out this morning to blog the general status of “exclusive remedy” in the workers comp system, but I’ve been distracted by a specific case which involves an injury to a professional athlete. I will return to the more general ramifications of “exclusive remedy” in a few days.
Greg Lotysz was a lineman for the New York Jets. In July of 2000 he sustained an injury to the anterior ligament of his left knee while blocking another player during pre-season practice . Pursuant to his NFL Player contract and the players’s Collective Bargaining Agreement, he received care from the Jets’ Medical Department. Lotysz underwent surgery and post-surgery rehabilitation under the care of the Jets’ physicians. A post-surgical infection resulted in permanent damage to his knee, which in turn brought a premature end to his football career.
No Malpractice Here
Lotysz tried to sue the team doctors for $10 million in damages, but in December of 2002 an appeals court in New York ruled against him. The court found that the doctors were employees of the Jets, that their medical services were made available to plaintiff as a consequence of his employment and that their services were not available to members of the general public. In other words, the court viewed the team doctors as co-workers of the same employer, so tort liability was not available as a remedy. You cannot sue your employer and you cannot sue co-workers for work-related injuries. Comp was the “exclusive remedy” for the injured player. It’s interesting to note that the unions for all the major pro-sports leagues (NFL, NBA, NHL and MLB) filed a friends-of-the-court brief in Lotysz’s behalf, arguing that team doctors are actually independent contractors. (You can view a detailed case study of Lotysz’s story here.)
The fact that Lotysz’s claim falls under the workers compensation system is not all bad. While he cannot sue the doctors for malpractice, he is eligible for indemnity benefits (admittedly chump change compared to a professional lineman’s salary) and for lifetime medical benefits for any treatments related to the injury (given the apparent permanency of his disability, this could turn out to be a significant benefit).
It is important to note that hospitals and similar medical facilities that treat both the public and their own employees may not find the courts so receptive to the “exclusive remedy” approach. For the most part, when hospitals treat their own employees for work related injuries, they become a third party vendor. If employees are unhappy with the treatment, they usually have the option of pursuing tort remedies. The main difference, I would guess, is that the hospitals routinely treat the public, while the “team doctors” have a more limited practice.
Docs and Jocks
The Lotysz opinion is binding only in New York. It’s possible that under similar circumstances other states will conclude that team doctors are indeed third parties and thus liable to lawsuits for malpractice. In the world of professional athletics, the medical profession is intricately involved in what from time to time may be ambiguous circumstances. With such enormous sums of money at stake, owners may pressure doctors to rush star athletes back onto the field. Permanent damage may result. Under these circumstances the player will certainly want to pursue a tort remedy. Whether this option is available to the athlete remains a state by state situation.
Posts Tagged ‘physicians’
Docs and Jocks: Exclusive Remedy for a Pro Football Player
Wednesday, April 13th, 2005What is Disability Management?
Thursday, March 24th, 2005At the heart of workers compensation is — or should be — the concerted effort to treat workplace injury and illness and get people back to productive employment. Sounds reasonable, but how do you do it? What exactly is “disability management?”
Our esteemed colleague, Dr. Jennifer Christian, host of the informative WebilityMD website, takes a shot at defining disability management, in response to a simple question from someone new to the field. Just click on her link for the February Q & A. We think her casual outline deserves wider notice.
Comp Benefits
Dr. Christian’s list begins with the effort to control indemnity losses. Over the past two decades, this effort has centered in state legislatures across the country. Once workers comp came onto the national radar screen, legislatures tried a variety of strategies to lower costs. These ranged from the highly successful Qualified Loss Management Program (QLMP) in Massachusetts, to Governor Schwarzenegger’s recent efforts in California (where a 10% rate reduction is finally in the offing). In the ongoing effort to cut costs, it’s always tempting to cut benefits, which many states have done. (We happen to believe that you control the costs of comp without cutting benefits — but that is fodder for another blog.)
Workers Comp and Medical Care
Dr. Christian looks at three areas related to medical care, not surprisingly, as she is Board Certified in occupational medicine. First, she thinks that vocational rehabilitation programs represent a missed opportunity in many instances. We agree. The problem may be in the current disconnect between the employer where the injury occurred and future employment. There should be a better way to tie voc rehab to real employment opportunities.
Dr. Christian next examines the need to speed up medical care, specifically, through the prudent use of nurse case managers. While recognizing the utility of nurse case management, she believes strongly that these services require more than just a conventional nursing background. The key is developing a strategy for every open claim — a strategy that maximizes the return-to-work probabilities.
In addition, Dr. Christian takes a very interesting look at her own profession. I especially enjoyed her laundry list of the ways doctors can be the problem: they can be incompetent, disorganized, enabling, erratic, inattentive, neglectful, inappropriate, corrupt, greedy and unethical. She singles out the “predatory physicians” who provide serial, unnecessary services to unsuspecting and often innocent workers. (This has been a huge problem in California.) Needless to add, she has much to say about the positive role of doctors in solving the disability problem.
“Delayed Recovery”
Finally, Dr. Christian focuses on what may be the single greatest cost driver in the entire workers compensation system: we often use the word “malingering,” — injured workers staying out of work longer than is medically necessary — but Dr. Christian has coined a more neutral and more compelling terminology: “delayed recovery.” Under delayed recovery, even though there is no medically necessary reason for people to be out of work, they do not return to work. These delays may stem from actions (or inactions) of the employee, the doctor, the employer or even the insurance carrier. And as injured workers drift on their own through the medical maze, they begin to lose their identity as workers. They often succumb to a “disability syndrome” and begin to believe that they are never going to be able to work again. Dr. Christian sees the need for a multi-disciplinary assessment, one that looks at more than just an injured body part. Through such an assessment, we can identify the people most at risk for delayed recovery and plan effective interventions so that the delays are minimized.
The Employer Role
Dr. Christian recognizes the importance of employer involvement, without which success in controlling losses will remain a distant goal. Educated employers know how to respond to injured workers. They secure first rate medical treatment and use temporary modified duty to accommodate medically necessary restrictions. Educated employers treat every injury with a sense of urgency, because they care about their people and because they understand the risks involved in a “delayed” recovery process.
Even though Dr. Christian’s brief paper is just the beginning of a working definition of disability management, there is plenty of food for thought for all of us. Every once in a while, we need to step back and refocus on the big picture. We need to redefine what we are trying to do in managing disabilities and the best ways for accomplishing our goals. Dr. Christian’s paper is an excellent starting point in this effort.
Company Docs in the 21st Century
Friday, February 11th, 2005Frustrated with the high cost of providing medical insurance for its 12,000 employees, Quad/Graphics decided to set up its own health care system. In an article in the Wall Street Journal (available by subscription only), staff writer Vanessa Fuhrmans describes a fast growing company that was able to think way out of the box to solve an intractable problem. Quad/Graphics spends about $6,000 per employee on medical costs, fully 30% less than the average company in its home state of Wisconsin.
This is certainly not a model that most companies could replicate. You need a large concentration of employees in just a few locations. Perhaps even more important, you need a high level of trust between management and workers. Fuhrmans points out that Quad has a long history of harmonious relations between management and workers. If the workers distrusted management, they would not entertain the idea of going to management’s own doctors — not just for their own medical services, but for their entire families as well.
Quad employs its own internists, pediatricians and family practitioners. It operates its own labs, pharmacies, and rehab centers. They contract directly with local hospitals and specialists for advanced care. It is also important to note that doctors’s bonuses are tied to patient evaluations and health outcomes — unlike our mainstream medicine which values the number of contacts above all. Quad doctors have a full half hour to spend with patients, which leads, naturally enough, to a highly effective disease prevention program.
Workplace Injury
The article did not address how workplace injuries were handled, so I sent Ms. Fuhrmans an email inquiry. She responded within minutes, explaining that Quad does indeed handle many of its own workers’ compensation cases. “This is where they see a lot of their savings.” It makes perfect sense that workers would trust the same physicians who treat their families to manage workplace injury and illness. I would surmise that their in-house rehab facilities are quite capable of managing workplace injuries. Even though “occupational medicine” was not listed in the article as an available specialty, a progressive company with an inhouse medical capacity would naturally keep a strong focus on returning injured employees to full duty as quickly as possible.
The Quad model has been so effective, other employers have contracted with QuadMed LLC to provide in-house services. The article cites Briggs & Stratton and Rockwell Automation, both of which have asked QuadMed to operate full-service clinics for their employees in Wisconsin.
Confidentiality Conundrum
Fuhrmans points out that employees do have some concerns about privacy issues. They obviously don’t want personal details about their health (or the health of family members) to end up in a supervisor’s hands. Quad medical staff sign confidentiality agreements, promising to keep patient information within the clinic. Their computer systems are separate from those of the factories.
This is all well and good. But there certainly is an opportunity for ethical tensions. Here’s just one example. A worker comes to the clinic with a knee injury suffered while playing hockey on the weekend. He cannot afford to miss any time from work. Should the doctor release him to regular duty? Let’s assume the worker does continue at his job. What if he comes in the next day claiming that work has aggravated (or even caused) his knee problem? How should the doctor respond?
It is not difficult to envision doctors getting caught in the middle of some very challenging issues. Workers’ compensation places tremendous leverage in the doctor’s hands. The assumption is always that the doctor is a disinterested party. But when the doctor is in effect an employee of the same company, this may create the potential for a conflict of interest.
Finally, I wonder about the separation between Quad and QuadMed. Is the latter a “third pary medical provider” and thereby subject to lawsuits for malpractice? Federal confidentiality standards are very strict on the personal health side (and more flexible on the workers’ comp side). Once again, it is not hard to imagine circumstances where the doctors are truly caught in the middle.
Quad/Graphics deserves a lot of credit for tackling the health care dilemma directly. In many respects, it’s the classic American story. Faced with a huge national problem, creative managers figure out a way to solve it on the local level. From our perspective, the roots of the solution lay in the fundamental trust that existed between management and workers. There is simply no substitute for that kind of trust, which may be the most powerful collateral for change in the ever-challenging world of business.
States ask drug firms to report gifts to individual physicians
Sunday, February 29th, 2004In an attempt to control rising drug costs, four states – Maine, Nevada, New Mexico, Vermont – have legislation requiring pharmaceutical representatives to report on marketing expenditures to physicians. Ten other states are currently considering such legislation, while six other states have rejected similar legislation.
“The first step state lawmakers are taking is requiring companies to report how much sales representatives are spending and what they’re spending it on. Sponsors of these bills acknowledge that they may not immediately lower costs, but new laws could cause a budget shift with less spent on marketing and more spent on samples, medical education support and research and development.”
While both the AMA and the pharmaceutical industry have had ethical guidelines in place since 1990, some don’t think that these guidelines go far enough when considering the expenditures involved. In 2003, drug companies spent $21 billion on marketing versus $32 billion on research and development.
The Center for Policy Alternatives reports that:
“Drug manufacturers spent more than $16 billion on direct marketing to doctors in the United States during 2001. That amounts to more than $19,000 per physician per year. This money is largely spent on visits to doctors by drug manufacturer sales representatives, called “detailers.” The job of a detailer is to promote the latest, most expensive brand name drugs.”
“Drug companies increased spending on marketing to doctors by 74 percent between 1997 and 2001, according to the U.S. General Accounting Office. The drug industry employed 87,892 detailers in 2001, an increase of 110 percent from the 41,855 employed in 1996. During that period, the drug industry sales force grew from one detailer for every 19 doctors to one detailer for every nine physicians in America.”
More on state efforts to control prescription drug costs and the impact of prescription drug costs on workers compensation.
