Many years ago, I took care of a worker’s comp patient. He wasn’t improving. He lamented he could not even pick up the newspaper from his yard.
The worker’s comp carrier obtained video surveillance footage of this same person getting in his car, traveling over two states to reach a casino. There, he was filmed with a drink in one hand, a cigarette in the other, reveling at the end of a craps table. He was kicking one leg up in the air like a UFC contender screaming “Seven come Eleven.” I don’t think he won any money; but, he looked like he was having fun.
He came with his case manager to my office and we all watched the video. I did little more than look at the patient; and without missing a beat, he stated, “Doc, some days are good days, some days not so good.”
As Groucho Marx said, “Who are you going to believe, me or your lying eyes?”
Worker’s comp invites some level of abuse. As doctors, we are asked to weigh-in on the question -Can this patient go back to some type of work?
HIPAA and state privacy laws allow doctors to disclose limited protected health information to answer this question, when posed. Unfortunately, in the good faith quest to root out fraud and abuse, no good deed goes unpunished.
In North Dakota, an orthopaedic surgeon took care of an office worker, whose pain was aggravated by typing. Conservative measures failed to help. The patient was offered surgery, but she refused. Her injury was declared stable and she retired from her job.
In 2011 the North Dakota Workforce Safety & Insurance’s [WSI] Special Investigations Fraud Unit contacted the orthopod. He was asked to view surveillance video this patient. WSI asked the orthopod to comment as to whether the patient was violating her activity restrictions.
The video showed a woman wearing a baseball cap and sunglasses throwing 20 pound branches (5 months after the patient’s last visit with the doctor). WSI recorded the orthopod’s statement after he watched the video. He stated that it certainly could have been his patient but “If it wasn’t her it was someone that certainly looked like her.” The orthopod was informed 6 months later that it was the patient’s neighbor and not the patient.
The North Dakota Board of Medical Examiners filed a complaint against the orthopod. The allegations:
- “Respondent . . . made numerous inappropriate comments and unprofessional comments about K.H. and her injuries.”
- “Respondent also failed to act as an advocate for his patient during the … interview with Workforce Safety and Insurance.”
- “Respondent’s viewing and of answering questions based upon the Workforce Safety and Insurance video tape goes beyond the scope of consent granted by K.H. in N.D.C.C. § 65-05-30 and violates the confidentiality between a physician and a patient as proscribed by N.D.C.C. § 43-17-31-(13).
Both WSI and the North Dakota Board of Medical Examiners are state agencies. WSI asked for the doctor’s help in rooting out potential fraud and abuse. The Board of Medicine brought charges against the doctor for providing this help.
When the orthopod gave his statement to WSI, he did not realize that there was existing case law on a similar issue, which ruled that the language of N.D.C.C. § 65–02–24 does not compel a claimant’s treating physician to become an expert for WSI’s investigations into alleged violations of N.D.C.C. § 65–05–33 outside of the treating physician’s . . . examination or treatment of the claimant. State ex rel. Workforce Safety, & Ins. v. Altru Health Sys., 2007 ND 38, 729 N.W.2d 113, 119. In other words, if a doctor does not want to watch (or comment on) surveillance video of his worker’s comp patient, he may avoid doing so. I wonder how many North Dakota doctors knew about this case? Hint, how many fingers are on your hand.
Still, the Altru case is different than what the orthopod was being hammered for.
Altru ruled that a treating doctor may refuse to be an expert in a case against his worker’s comp patient. Altru does not mandate that that a treating doctor must refuse to be an expert in a case against his worker’s comp patient. This is an important distinction. If this matter was important to North Dakota Board of Medical Examiners, they could have held hearings on the matter, voted on policy, and served notice to North Dakota physicians. They did not.
The orthopod reasonably believed that the patient’s carrier was asking for limited information to which they were legally entitled. The orthopod spent two years defending this case. Then, because of the expense involved, he signed a stipulated agreement.