A 2015 report by the National Safety Council, “Prescription Pain Medications: A Fatal Cure for Injured Workers,” details the fact that 25 percent of workers’ compensation prescription drug claim costs were for opioid painkillers. Although the percentage of workers using prescription drugs for treatment has increased in recent years, treatment outcomes haven’t improved.
In fact, one study in Washington State revealed that a worker who receives more than a one-week supply of powerful drugs soon after an injury has double the risk of still being disabled a year later. Plus, pain medication of this nature can cause serious harm to workers, including addiction, overdose and even death.
There have been numerous court cases in which a worker died of an opioid-related drug overdose.
In the recent case of King v. CompPartners, out of California, the worker thankfully did not overdose. However, he did suffer numerous seizures when an anesthesiologist abruptly withdrew him from powerful medication after deciding it was no longer medically necessary.
The problem is this particular drug, Klonopin, given to this worker for anxiety and depression stemming from an occupational back injury, is typically withdrawn slowly by a gradual reduction of dosage. The doctor did not inform the worker the risks he faced if he sudden stopped taking the drug.
Within three months, the worker suffered four seizures, which resulted in additional physical injuries. Soon after the fourth, a request was made to allow the worker to again begin taking the drug. A psychiatrist conducting a review also found that the drug was medically unnecessary.
However, neither doctor actually examined the worker or warned him of how dangerous abrupt withdrawal from the drug could be.
Plaintiff and his wife later sued the doctors, alleging professional negligence, general negligence, intentional infliction of emotional distress
Defendants argued the claim was preempted by the state’s Workers’ Compensation Act because it arose out of a utilization review that was part of the workers’ compensation process.
Defendants further alleged they owed no duty of care because there was no doctor-patient relationship. They had never personally examined the plaintiff and never treated him.
Finally, they argued plaintiff wrongly split a medical malpractice cause of action into two negligence causes of action. This is important because causes of action for medical malpractice have different requirements in terms of notification and proof burden.
Plaintiffs opposed the action, saying the claim wasn’t preempted by the Workers’ Compensation Act because they weren’t disputing the decision to take the worker off the drug. They were disputing the way the doctors did it. Further, they asserted there was a duty of care owed because plaintiff’s medical treatment was determined by defendants’ decisions within those utilization reviews. They argued workers’ compensation cases require that the employee was working at the time of the injury and the injury was proximately caused by the employee’s job – and that wasn’t the case here.
Trial court granted the demurrer stating there was “no good law” or “any much law” under the utilization review to handle such a claim, adding, “This needs to go up to the Court of Appeals.” Appeals court affirmed the demurrer, but reversed the trial court’s denial of plaintiff’s leave to amend the claim, meaning he could potentially refile.
King v. CompPartners, Jan. 5, 2016, California Court of Appeals, Fourth Appellate District, Division Two
More Blog Entries:
Sevy v. SVL Analytical – Proof Burden in Total Permanent Disability Cases, Jan. 7, 2016, Georgia Workers’ Compensation Lawyer Blog