September 2020

Ethics Corner

Gary Fleischer, MD
Ethics & Professionalism Committee Member

Worker's Compensation

Scenario 1:
Dr. Jones is engaged by a Worker’s Compensation insurance carrier to perform an Independent Medical Examination on Mrs. Smith for a presumably work-related injury.  Under the terms of Worker’s Compensation law, at least in Dr. Jones’ state, Independent Medical Examinations are specifically performed without establishing a doctor-patient relationship between the examining physician and the patient.  Dr. Jones faithfully made that clear to Mrs. Smith at the onset of her examination. Mrs. Smith sustained a lifting injury while at work and presents with a chronic, symptomatic disc protrusion that has failed appropriate nonoperative management and for which her surgeon has indicated her and requested coverage for a simple discectomy.  Dr. Jones agrees with her surgeon’s assessment and plan.  In compliance with Worker’s Compensation Law in his state, Dr. Jones submits his final report to the carrier confirming his agreement that Mrs. Smith’s injury was both causally related and appropriately indicated for surgical intervention.  In accordance with the appropriate restrictions, Dr. Jones shares none of his opinion with Mrs. Smith and informs her that his report will be sent to the insurance carrier, and that there is a mechanism for her to obtain a copy through the proper legal channels. Two weeks later, Mrs. Smith, who had been under whelmed with her original surgeon and favorably impressed with Dr. Jones’ professionalism, bedside manner, and office staff, contacted Dr. Jones’ office, requesting to transfer her care from her original surgeon to Dr. Jones.  Dr. Jones understands that, were he to accept her in care, he would almost assuredly also indicate her for surgery, as he agreed that it was appropriately indicated during his Independent Medical Examination.  However, the Worker’s Compensation adjustor raises an objection that Dr. Jones should not treat Mrs. Smith.

Scenario 2:
Dr. Jones is reviewing another case for a different Worker’s Compensation carrier.  In this case, Mr. Brown is being evaluated for a proposed lumbar fusion after sustaining a fall resulting in a spondylolysis that has failed nonoperative management.  Mr. Brown’s surgeon is planning to proceed with surgery within the next few days regardless of the outcome of the Independent Medical Examination, initially planning to bill the procedure to Mr. Brown’s private insurance and then re-filing with Worker’s Compensation if the carrier excepts responsibility for coverage.  Dr. Jones, again in accordance with his state’s Worker’s Compensation Law, proceeded to perform the Independent Medical Examination in good faith, without establishing a doctor-patient relationship.  However, in this case, while he agreed to the surgical intervention for the spondylolysis was both causally related and indicated, his physical examination raised significant concerns that Mr. Brown may have underlying cervical myelopathy that might need to be addressed prior to performing the lumbar fusion.  Without an opportunity to further examine his cervical spine, Dr. Jones has no way to assess the potential degree of cervical stenosis or cord compression and is concerned that that may pose some safety concerns for doing a prone lumbar surgery to address the lumbar spondylolysis.  However, under the Worker’s Compensation Law, Dr. Jones is prevented from having that discussion with Mr. Brown, as he is not permitted to discuss the findings of his examination or make recommendations regarding his care directly to the patient.

In both of these scenarios, there is an unusual relationship formed by the legal framework around which Worker’s Compensation functions, at least in Dr. Jones’ state.  There are other similar situations in which this type of unusual relationship occurs, but for most of us, Worker’s Compensation is probably the most typical.  Another example of this kind of altered relationship occurs in the military, where the physician’s primary obligation in some circumstances may be to the military and override his obligations to his patient.  In these situations, the physician may find himself trapped between his moral and ethical sense of responsibility and his or her legal obligations.  There may not always be a clear or easy pathway to resolve the potential conflict and fulfill both his or her ethical sensibilities and legal obligations.

In the first scenario, Dr. Jones performed his initial Independent Medical Examination in good faith and never intended to engage Mrs. Smith in care.  However, Mrs. Smith, perceiving his level of caring and professionalism, sought him out as her surgeon.  Since Dr. Jones did not solicit Mrs. Smith as a patient, there is no strict legal barrier to him treating her at some point in the future.  However, the Worker’s Compensation carrier, with whom Dr. Jones would like to maintain a good working relationship, has raised an objection that this constitutes conflict of interest in that his Independent Medical Examination rendered an opinion that the surgery was indicated and compensable, and paved the way for Dr. Jones to essentially approve his own surgery.  On the other hand, Dr. Jones has a patient requesting his services, for whom he knows he can provide meaningful care.  Dr. Jones is essentially faced with two choices, he can treat Mrs. Smith over the objections of the insurance carrier, potentially damaging his working relationship with the carrier, or Dr. Jones can elect not to engage Mrs. Smith in care and refer her back to her original surgeon, in whom Mrs. Smith has expressed a lack of confidence by trying to change surgeons.  One potential strategy to mitigate the conflict may be to discuss the situation with the Worker’s Compensation carrier at the time of the request and try to allay any concerns that they have about conflict of interest, but this also risks compounding the deterioration of the relationship with her Worker’s Compensation carrier if they were to still refuse and Dr. Jones felt obligated to care for Mrs. Smith.

In the second scenario, Dr. Jones is legally prohibited from sharing the findings of his examination with Mr. Brown.  However, he has significant ethical and moral concerns that he may have identified a problem which poses a real surgical risk to Mr. Brown, and which seems not to have been identified by his surgeon.  Under normal circumstances, Dr. Jones might reasonably expect that including those concerns in the report for his Independent Medical Examination, would result in the findings being communicated to the patient or his surgeon prior to surgery so that they could be appropriate addressed.  However, Dr. Jones is quite distressed, understanding that the surgeon is planning to perform surgery in the very near future, before the report will have been seen.  In this case, Dr. Jones’ moral and ethical sensibilities, to prevent potential inadvertent, iatrogenic harm to Mr. Brown are in direct conflict with his legal obligations under the Worker’s Compensation law.  How should he proceed to try and fulfill both his moral/ethical obligation without violating his legal responsibilities of nondisclosure to anyone but the Worker’s Compensation carrier? One possible approach to this conundrum might be to contact the Worker’s Compensation adjustor and secure permission to contact the other surgeon directly.  In that way, Dr. Jones could discuss his concerns directly with the other surgeon and allow him to pursue further evaluation as he sees fit, thereby discharging his ethical/moral obligation to the patient without violating his legal obligations to the carrier.


Chair: B. Stephens Richards III Committee: Anthony M. Petrizzo; Jochen P. Son-Hing; Gary Fleischer (C); Stuart H. Hershman (C); Christopher J. Kleck (C); Robert F. Murphy (C); Mark Oppenlander (C); Paulo Jose Silva Ramos (C); Anuj Singla (C); William F. Young Jr. (C); Jacob M. Buchowski; David A. Hanscom; Steven D. Glassman, Chair Elect; Sherif M. El Ghamry; Hee-Kit Wong; S. Samuel Bederman; John P. Lubicky