Maryland Orthopedic Surgeon’s Hard-Fought Fight (And Loss) Against A Powerful Insurance Company

162017_132140396847214_292624_nA long-time, well-respected Maryland orthopedic surgeon fought the largest, most powerful workers’ compensation insurance carrier in Maryland that was legislatively created by the State of Maryland, and ultimately loss his medical license and the long battle. The orthopedic surgeon recently published his chronology and response to the allegations against him, and his experiences with the powerful forces that targeted him. We found the response both compelling and eye-opening, and therefore publish it verbatim below.

The Response:

This is my response to the actions taken against me and my medical license by the State of Maryland.  You will see that all patient names have been redacted.  On occasion, psudonames were used to protect reluctant witnesses.  Despite the temptation, I have made every effort to avoid judgmental or slanderous remarks with respect to the state’s case.  This is the factual basis behind my side of the issues.  Decide for yourself!

HISTORY OF MARYLAND ORTHOPEDICS

Maryland Orthopedics was founded in 1979 by Dr. Drapkin.  I joined the practice a year later.  Over the years we added three additional orthopedic surgeons, Dr. McGovern, Dr. Franchetti, and Dr. Cohen.  We ultimately opened four offices in the suburban area.

Initially our patient mix was highly varied. The bulk of our new patients came from emergency room visits or were referred by neighborhood pediatricians, internists and general practitioners.  Our practice involved all manner of orthopedic infirmity including degenerative problems, acute fractures, wear and tear arthritis, and people who were injured at work or in car accidents.  Over two decades we began to see more and more patients who had been injured at work.  Initially it was easy to treat these clients inasmuch as pre-approval for treatment was not required by insurers.  Over the years, however, workman’s comp insurers tightened their control over patient care and required pre-approval for any procedure or test that costs more than $300.  Frequently patients were sent for independent medical evaluations (IME) to other orthopedic surgeons who were paid by the insurance company and who very often denied our recommendations for treatment.  This left the patient out of work, unable to receive treatment, and cut off from his unemployment benefits.  He was then forced to hire an attorney and appeal the insurer’s decision to the worker’s comp commission, a process that often took an additional six months. Fair and prompt treatment was secondary to Insurer’s profit.

By 2007 our workman’s compensation practice had grown because few other orthopedic practitioners were willing to treat in such a hostile environment. The fee schedule was low.  There was also a tremendous amount of paperwork required to process each case. Reimbursement was nearly always late or entirely unforthcoming.  Patients were often unhappy and depressed because their cases were being treated in such a dragged out fashion due to denial of claims and procedures by the workman’s comp carriers.  We became virtually the only large orthopedic practice willing to see WC patients without pre-approval from the insurer; we would see patients the day they were injured, no questions asked.  More importantly, we never discharged a patient until his case was medically resolved.  This often took three or four years due to the cumbersome bureaucracy. We continued this segment of our practice because we felt the patients and their injuries were no different from any others. These patients were typically police, fireman and teachers who deserved top notch medical attention.

We are proud of our track record and the expertise we developed in treating injured workers. Our focus has led to improvements in patient management, but also gave us a high profile and made us a target of one insurer.

WORKERS’ COMP STRUCTURE

The State of Maryland has an extensive body of law designed to deal with patients who are injured at work.  Employers are required to carry workman’s comp insurance.  Issues that arise between patients, insurers, employers, and physicians are dealt with by a commission that periodically holds hearings regarding individual cases.  Rulings are then set forth and the interested parties are required to accept them.  All payments made to our practice are pre-approved by this commission.

In the year 2000 our relationship with the comp carriers became adversarial. Nearly every case was contested by the insurer.  Consider for example a typical patient suffering from a back injury with leg pain.  Normally an MRI is ordered in this situation. Depending on the results, further treatment such as epidural steroids or surgery would be recommended.  Under the system, the initial MRI as well as further treatment was usually denied, delaying progress for months or years.  By this time the patient was often reliant on pain medicine, out of work, and their treatment remained in bureaucratic limbo.

Maryland Orthopedics billed the insurer for a service after it was provided. Sixteen percent of our workman’s compensation bills were sent to The Injured Worker’s Insurance Fund (IWIF). This was a state run insurance company. They routinely denied payment for their covered worker’s care.  We continued to treat the patient, however, he was typically obliged to hire a lawyer and appeal IWIF’s denial to the Workman’s Compensation Commission. The commission then ordered that the bill be paid but the process took three to four months. When epidural steroids, neurosurgical consultation, MRI scans or surgery was requested, pre-approval by the insurer was required. Here again denials were routine. The delays added up to several years for a seriously ill patient. Payment for our services was only made after the workers’ comp commission authorizes each and every item in the patient’s bill.  If the insurer felt a service  unnecessary they refuse payment despite orders from the Workman’s compensation Commission.  Those payments we did receive were made according to a fee schedule with no regard for the actual amount billed.

During this time-frame patients come to our office complaining bitterly of pain.  They were unhappy as  they could not work or get treatment for their pain.  Furthermore, they were required to come to our office every month or their benefits were cut off and they would not get paid. This was a setup for what was later criticized as “over-utilization”. These office visits were often highly emotional and forced our practice to deal with injured workers using innovative techniques.

By November 2007 I had become quite concerned about these ruinous delays and I wrote a letter to commissioner, Carl Aulmann, at the workers’ comp commission.  I described the problems noted and I received no response.  I called him back six weeks later. He told me that he was going to deal with our issues in a meeting that very day, yet we never heard back.

MANAGEMENT OF WORKMAN’S COMP CASES

Many patients with delayed management developed chronic pain issues.  Their treatment remains controversial.  Some people felt that chronic pain should be treated compassionately with pain medications and narcotics dispensed liberally, while another group felt that narcotics must be minimized due to their potential for abuse and addiction.

By 2007 the pendulum was swinging towards the anti-narcotics philosophy.  We created an in-house pharmacy where we could dispense non narcotic medications directly to the patient.  These were non steroidal anti-inflammatories, mild muscle relaxers, a nonnarcotic painkiller called tramadol, and occasionally sleeping aids.  In addition, we began to utilize trigger point injections (TPI) liberally and sciatic nerve blocks (SNB) on occasion.  These two procedures became part of the issues involved in IWIF’s complaint against Maryland Orthopedics.  A trigger point injection is a shot with a very tiny needle of a small amount of local anesthetic into a muscle that is in spasm, typically the muscle on either side of the neck or back.  These shots bring several weeks of substantial pain relief for most patients.  I never saw any complications with xylocaine injections over a period of thirty years.  These injections were occasionally repeated at monthly intervals, but only in patients who requested them and who documented consistent relief from them.  A shot of lidocaine is far more benign than a thirty day supply of Percocet which is a widely abused pain killer.

Sciatic nerve blocks (SNB) are procedures designed to block function in the sciatic nerve, which is the nerve that provides the sensation of  pain in the leg.  Typically anesthesiologists give sciatic nerve blocks in the operating room by continuously infusing lidocaine adjacent to the sciatic nerve. This makes the whole leg numb so that a patient can tolerate a surgical procedure.

We performed sciatic nerve blocks in the office using cortisone as a therapeutic agent and only a small amount of lidocaine to mask any burning from  the cortisone.  The goal was to alleviate the inflammation in the sciatic nerve that was creating leg pain.  This treatment was used in patients with severe and disabling leg pain and was only used occasionally.  The procedure involves simple injection with a 1.5-inch needle of cortisone into a spot between the outer aspect of the hip and the buttock on the lateral side of the hip joint.  Any experienced orthopedic surgeon can palpate bony landmarks and find the site of the sciatic nerve with considerable accuracy based on his experience visualizing and isolating the nerve in the operating room.  When successful these shots alleviate leg pain for as much as three or four weeks.  They were not repeated routinely.

The in-house pharmacy, in-house physical therapy, trigger point injections and occasional sciatic nerve blocks allowed us to deal with chronic pain quite successfully.  While some patients also required narcotics, the injections allowed us to minimize the amount of narcotics prescribed.  These treatment plans allowed us to successfully treat injured workers despite the long delays caused by the insurer.

IWIF COMPLAINT

The Injured Workers’ Insurance Fund was a state-owned insurance company, the “insurer of last resort,” that was in the business of selling workman’s comp coverage to employers.  A substantial percentage of our workman’s comp practice was insured by IWIF.  Over the years we had numerous differences of opinion regarding treatment.  IWIF has a group of paid “Independent Medical Examiners,” physicians who routinely reviewed our cases and often denied all of our treatment.  These physicians received aggregate payments of several hundred thousand dollars per year for seeing these IME’s.  IWIF would then use these opinions to deny our treatment even when it had been approved by the Workman’s Compensation Commission.

First, IWIF selected several “outliers” from among thousands of old cases to discredit our practices. None of the patients were actually interviewed. These cases were then critiqued by IWIF’s Independent Medical Examiners (IME) Physicians, Dr. Conant and Dr. Friedler who  criticized our treatment. “Peer Review” was then done by Dr. Sethi and Dr. Conant, a process which differs little from IME preparation. Once armed with these negative opinions IWIF filed a letter of complaint with the Maryland Board of Physicians against our practice.  We responded to the Board with specific justification of each patient’s care.  The Board sent the case histories out for more “peer review” to more witnesses (Dr. Sethi) and subsequently charged us with specific violations of the Health Care Act.  The cases were then forwarded to the Attorney General’s Office for prosecution.

The Board filed formal charges against Maryland Orthopedics and each physician on May 2012, nearly five years after IWIF’s complaint.  The charges were:

1. Over utilization of health care.

2. Failure to meet appropriate standard of care.

3. Submitting false statements to collect fees.

4. Failure to keep adequate medical records.

We were prosecuted by the attorney general’s office.  Several doctors were offered settlements with fines, remedial education, and probation of their licenses.  They accepted these terms to avoid lengthy and expensive litigation. One doctor retired, but I elected to have my day in court.  My process involved a hearing before an Administrative Law Judge complete with witnesses on each side and a complete review of each patient’s case.  The Judge’s decision is non-binding and is simply a recommendation to the Board.

HEARING RESULTS

My case was heard on October 16, 2012 and lasted seven days.  The Administrative Law Judge (ALJ) dropped many of the charges but did find inadequate record keeping, over utilization of services, and most troubling, “false statements to collect fees”  with five patients.  All of the other State’s charges were dismissed.  The Board then held a twenty minute “hearing” in late June of 2012.

The ALJ is not a medical professional.  I believe she was incorrect in her findings about sciatic nerve blocks.  I accordingly filed “Exceptions to the Proposed Decision” as well as “Answers to State’s Exceptions,” to summarize my defense.  What follows below is a specific explanation of my defense for each of the four charges:

• Over-utilization of health care:  We did not over-utilize services in any of these cases.  The patients involved were under our care for several years as opposed to several months in a non-workmen’s comp environment.  This inherently necessitates more office visits and more treatment, but never was treatment too intense or too frequent.  The problem lies within the workmen’s comp system and with IWIF itself.  Constant delays extend the course of a patient’s treatment unnaturally.  As a result Maryland Orthopedics was forced to utilize alternative pain management systems to temporize during these long delays.  If you wish to review the cases they can be examined in the links above.  You will see that my treatment was reasonable, proper, and caring.  I have documented the delays caused by IWIF and explained my rationale for treatment in each case.  I have complied with my oath to provide humane treatment for these patients and should not be penalized for behaving as a responsible physician.

• Failure to meet appropriate standards of care:  The standard of care is defined as that care which a reasonable physician would provide under similar circumstances.I did not break that standard.  The judge ruled that orthopedic surgeons do not typically perform sciatic nerve blocks.  She concluded that we were outside the standard of care because we did use them.  This narrow definition does not take into account the fact that a license to practice medicine is a license to use any reasonable and scientifically accepted treatment in an appropriate situation.  That is exactly what I did.  Sciatic never blocks are frequently used by physiatrists and anesthesiologists to control pain all around the country.  I employed them on seventeen occasions over a period of five years spread out over five different patients.  These were very specific situations in which the patients were incapacitated by leg pain that proved responsive to injections with cortisone adjacent to the sciatic nerve.  The workmen’s comp commission judged all bills for this treatment to be necessary and reasonable, and ordered them paid by the insurer. To rule that orthopedic surgeons are restricted to a small menu of treatment options that are commonly utilized only by everyday orthopedists is unreasonable and works only to the patients’ detriment.  Maryland Orthopedics was in a special situation as were a number of our workmen’s comp patients. Our treatment was proper, reasonable, and fully justified.

• Submitting false statements to collect fees:  I believe the judge was blatantly incorrect with her findings of fraudulent billing.  She was persuaded by the insurer’s professional witnesses that I had actually performed a trigger point injection and “upcoded” it as a sciatic nerve block.  The motive here would be monetary because a sciatic nerve block is reimbursed at a higher rate than a trigger point injection.  The witnesses obfuscated the realities of this case.  A sciatic nerve block is a totally different procedure than a trigger point injection.  Different medicine is used and a much larger and longer needle is used.  Furthermore, a sciatic nerve block is injected near the buttocks, nowhere near the neck or back.  We use CPT code 64445, which is specific for the procedure I actually employed.  The witnesses convinced the administrative law judge that I was actually giving shots with a tiny needle of local anesthetic superficial to the sciatic nerve.  That is not the case and there is no evidence of that.  All of the expert witnesses on my side testified that I had performed the sciatic nerve blocks in the proper fashion and billed them in the proper fashion.  There was no evidence of deceit or of up coding as the administrative law judge felt was present.

• Failure to keep adequate medical records:  I was criticized by the expert witnesses for failure to document the dosage, drug used, location, and patient response to every shot.  That is the standard of care today, but these cases refer to 2001-2007 when standards were less demanding.  Our office had a “Standard Operating Procedure” for TPI and SNB.  When these terms were used in a medical record everyone in the office knew exactly what had been done.  This type of shorthand was acceptable at the time and negates the State’s claim of inadequate record keeping.

ANALYSIS

The workman’s comp system was originally designed to treat injured workers fairly and competently.  Over the years it has degenerated into a contest between insurance companies (read IWIF) and IME consultants versus treating physicians and injured workers. The fee schedule for payment of doctor’s treatment of injured workers became lower over the years, and therefore fewer and fewer orthopedic surgeons were willing to treat them. Our practice continued to offer treatment and in doing so we developed a high profile at IWIF.  Of the hundreds of insurers with whom we deal in this context only IWIF has ever filed a complaint in over thirty years of practice by five physicians treating  tens of thousands of workman’s comp cases.

IWIF focused on Maryland Orthopedics and conducted numerous statistical audits of our bills.  They had thousands of patients to choose from.  They picked ten or so patients with whom they felt they could generate a case.  These patients’ records were then sent to Drs. Conant, Sethi, or Friedler, the first and last of whom realize the bulk of their income from legal work done for insurance companies. (Click here to view the IME Physicians).  Dr. Conant earns about $400,000 a year in forensic medicine and does no surgery whatsoever.  Dr. Friedler earns over $400,000 a year from IME’s alone.  Dr. Sethi is a spinal surgeon in direct competition with my practice who like me performs injections in his own office.

The ALJ found fault only with several of my cases.  She was swayed by the insurer’s doctors and rejected testimony provided by my witnesses, two of whom are pain management specialists and one of whom is another orthopedic surgeon in Baltimore.  She found that sciatic nerve blocks are outside the standard of care only because orthopedic surgeons in general do not utilize the technique.  She rejected the realities of my practice where an injured worker’s treatment is delayed by years due to constant denials by the insurer and their experts.  It was this environment that encouraged me to seek novel methods of pain management such as trigger point injections and sciatic nerve blocks.  The nerve blocks were outside the normal scope of an average practicing orthopedic surgeon, but they were reasonable and appropriate in my patient’s situation.

The ALJ overlooked the fact that none of the patients had any harm done and none of them have complained.  There were no complications and the injections were never repeated unless there were documented positive results from prior injections to serve as the basis for further treatment.  The ALJ is not a medically trained specialist and is usually involved with cased involving driver’s licenses and state regulated commerce.

The complaint made by the State involves only WC patients.  There were no complaints about the rest of my practice.  Indeed, the only patients involved were insured by IWIF.  None of the other hundreds of insurers have complained.  Why are they silent while IWIF has taken such strong action fighting Md. Orthopedics?  Honestly, I am not sure.  I do know that  with our practice out of the picture more patients will turn to other physicians, delay or reject treatment.

I am proud of my practice and my history with Maryland Orthopedics. My career has been spotless with no significant complaints or malpractice suits in thirty-three years. I am not guilty of any of the charges that have been set forth. My efforts have been directed towards providing excellent patient care and helping injured workers deal with what has become an extraordinarily adversarial system.  In all of the cases in which I was involved, I provided pain relief and guided the patient through a medical maze toward resolution of their original problem through traditional and definitive medical procedures.

I had long standing plans to retire at the end of June 2013 but I still refused a settlement and presented my case to the Board of Physicians on 6/26/2013. My statement is attached for you to read. I could have surrendered my license to avoid this hearing but contested the charges as a point of honor. Now that the board has found against me, I will continue the appeal process.

Source

If you or a loved one were injured as a result of medical malpractice in Maryland or in another U.S. state, you should promptly find a Maryland medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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This entry was posted on Sunday, March 16th, 2014 at 9:16 am. Both comments and pings are currently closed.

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