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Duty of Care: Action Plan
 # 1 find your State local representative; you can google this - here is the link: https://findyourrep.legislature.ca.gov/
# 2 Call their office to contact their "Staff or Deputy" in charge of Health Care Issues
ALTERNATIVELY you can email your representative directly; you can use this template:

Assemblymember [ ],
My name is [ ]. I am a practicing neurologist living and working within your district. I wish to gain your attention to my professional organization, California Neurology Society (CNS). CNS itself is recognized by the California Medical Association (CMA).
Our CNS Legislative Committee has written a resolution signifying current healthcare encumbrances impacting all Californians, especially injured workers. I am proud to announce that this resolution was submitted to the CMA Board of Trustees which adopted it on consent as official CMA policy.
Specifically aimed at California’s workers compensation system, the resolution, entitled: "Duty of Care: Requisite Principle in All Healthcare Contractual Language,” requires all physicians who are involved in evaluating and approving treatment for California’s injured workers have the same level of responsibility and “duty of care” as the physicians who are face-to-face with the patients and provide hands-on care on an ongoing basis.
You might be thinking, “Of course, that makes sense. Why would it be otherwise?”
To answer that question properly and concisely is the purpose of my writing to you. I would very much like to schedule a Zoom meeting between you/ one of your trusted staff and two members of our legislative committee, and myself, so we may discuss this further and share the legal background.
Indeed, we are confident this represents a critically important benefit to your constituents who become hurt or sick because of their employment. We hope for your support when the subject comes to the Assembly.
Our specialty organization's advocacy committee members look forward to the opportunity of bringing the details of our Duty of Care resolution to your attention. Please have your staff contact the CNS Legislative Committee at this email address: [email protected]
to schedule a meeting, and copy me at the above email address.
Sincerely,
[first name]
[full professional name] 


#3 When in contact with the legislator's local field office staff, request a meeting in the field office or over the internet (Zoom conference which CNS can arrange) between you, the Member or his/her Legislative Coordinator or other designee.
#4 We suggest a statement such as, "We have been successful scheduling meetings on a Tuesday after 4 PM" (or whatever best meets your own busy schedule; at CNS we have been meeting most consistently at this time with CNS members and their local legislative office's individuals) "but will be more than happy to meet at a time most convenient to you/ your staff."
#5 Make sure the CNS Legislative Committee know about the meeting you arrange; ask for our assistance by emailing your request to [email protected]
#6 during the ZOOM, we
a) discuss our Resolution (posted here) if you have not yet been able to present it
b) pitch Duty of Care in Workers Compensation to the legislator to gain their support


Note: if you have another issue you feel strongly about and wish to discuss, please let us know by emailing us here. Alternatively you may bring the issue up at the next CNS meeting during the open session.

 

Bullet Points

Present our society's Duty of Care Resolution posted here to your local State representatives and discuss the following:
Basic shortcoming in current law is two-fold:

– i. The statute and system allow UR programs to skirt URAC requirements by
1. Using doctors who are unlicensed in California to make decisions
2. Routine use of non-peers and not responding properly to requests for “true peers” when the treating physician asks for a review
3. Only the UR programs’ Med Director must be licensed in California
4. implementation of an impotent system of Independent Medical Review
5. IT IS VITAL TO DELIVER EDUCATION ABOUT TREATING PHYSICIAN RIGHTS UNDER URAC - please see Blog for details of upcoming meeting February 9, 2022

-ii. A complete lack of will on the part of the DWC to aggressively investigate and hold UR programs (the medical director) accountable
1. Fundamental reason is their budget is paid for by the employers
2. The DWC assumes each UR program uses a URAC accredited program and
3. Waits for complaints to be lodged through the audit complaint system
4. Status quo exists because of pattern of practice – five and six figure fines

Recent developments: 
a) King v CompPartners – recent California Supreme Court judicial opinion opens the door
b) The California Medical Association has recently approved adoption of this resolution as official policy
* Legislation = is the solution 

Duty of Care: Requisite Principle in All Healthcare Contractual Language

WHEREAS, Duty of care is a fundamental principle guiding all licensed physicians as they administer or participate in the administration of care to patients within many different settings and physician/patient relationships; and
WHEREAS, Those settings and relationships may be direct with a patient but often are established within the scope of consulting with and advising other physicians, specifically within the care review process commonly referred to as “utilization review”; and
WHEREAS, Duty of care extends to all healthcare providers and allied workers wherein every individual involved is expected to do no harm when making decisions that potentially impact a patient’s care; and
WHEREAS, Duty of care is not restricted to physicians and allied healthcare workers and is a responsibility and obligation that extends to all individuals in society wherein every individual is expected to exercise reasonable judgment and accept responsibility for the result of their decisions that potentially impact the public good; and
WHEREAS, Decisions of care are often rendered in the course of “utilization review” as defined in both commercial health care plans as well as in the course of providing health care in the workers’ compensation system; and
WHEREAS, Recent court decisions regarding utilization review within California’s workers compensation system perpetuate potential disregard for adverse outcomes to patients following error-filled utilization review decisions by some health-related entities and physicians making those decisions; and
WHEREAS, Those adverse impacts and resulting patient harm are causes of constant administrative and legal disputes, eroding the patient’s trust in their physician and in the “grand bargain” that the workers compensation system represents; and,
WHEREAS, As a direct result, the California Supreme Court, in its decision in King v. CompPartners, advised the California Legislature to consider amending the workers’ compensation utilization system to remove ambiguities surrounding Duty of Care and specifically, the professional responsibility of utilization review doctors who render such decisions without California licenses and thus without the oversight, and opportunity to be disciplined by the Medical Board of California for unprofessional conduct because they aren't under board jurisdiction; and
WHEREAS, Because of the lack of oversight and opportunity for discipline they cannot be prosecuted in the states in which they do have licenses because those states don't have jurisdiction in California, be it
RESOLVED, That the California Medical Association stands for the requirement that all healthcare entities and health-related lay entities include language in contractual arrangements that basic duty of care be exercised as the guiding principle and leading priority when making patient management decisions; and be it
RESOLVED, That all physicians who participate in any way within a utilization review system, whether workers compensation or in the private sector shall be subject to the same duty of care laws and requirements that apply to treating physician(s) and health care providers; and be it
FURTHER RESOLVED, That to accomplish this end, all utilization review physicians participating in that process, or actually rendering decisions regarding care for patients residing or being treated within the state of California shall be licensed in the state of California and, therefore, shall be subject to the jurisdiction of the Medical Board of California. 

 

Duty of Care Resolution : language