Every adjuster who has been handling workers compensation for a while has heard a disgruntled employee say, “I am going to sue that doctor.” As Americans have some of the best medical care in the world, a lot of people expect their doctor to make their pain go away and their injury heals without any residual. Often that is not the case. Even the best doctor will not alleviate all medical conditions.
An employee’s failure to recover to a pre-injury physical condition is not medical malpractice. For medical malpractice to exist, there must be some degree of professional negligence. Other than the physicians, there can be medical malpractice by hospitals, therapists, dentists, nurses, chiropractors, and other medical providers.
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“The 6-Step Process To Determine Workers’ Comp Injury Causation”
Four qualifications to designate medical malpractice that could impact a workers compensation claim:
- The doctor, hospital, or other medical provider is assigned to provide the medical care requested.
- The doctor, hospital, or other medical provider has failed to provide the medical care at the same level of medical expertise that another medical provider in the same medical specialty would have provided.
- Failure to provide the expected medical care resulted in an injury to the employee.
- Failure to provide the medical care at the appropriate level resulted in damages (Note: if there are no financial damages the employee will be unable to find a lawyer to pursue the claim).
In those instances where a surgeon performs a laminectomy that fails, or the employee develops reflex sympathetic dystrophy or fibromyalgia, it does not mean there is medical malpractice. It usually means the employees physical condition was not sufficient to withstand the stress the surgical procedure caused his body.
However, in the rare cases when a medical provider gave inferior medical service, the employee is right to obtain an attorney to pursue a medical malpractice claim. Unfortunately, the attorney will usually talk the employee into allowing the attorney to also represent them in their workers’ compensation claim.
When the attorney for the employee starts pursuing a medical malpractice claim in conjunction with the workers’ compensation claim, it is absolutely essential that the adjuster and nurse case manager work closely with a utilization review specialist. The reason for this is to keep the medical care for the workers’ compensation claim, and the cost associated with it, separate from the cost of the medical care needed to correct the alleged medical malpractice. The reason to do this is to document what can be recovered through subrogation. If the adjuster does not carefully document the additional cost due to the medical malpractice, the workers compensation insurer can get shut out of any financial recovery from the professional liability insurer when the medical malpractice claim is settled.
All states will compel the worker’s compensation insurer to pick up the cost of additional medical care needed due to a failed effort to medically treat an injury. The worker’s compensation board or industrial commission will not get involved in the question of medical malpractice.
Because damages an injured employee can recover from medical malpractice will greatly exceed the potential recovery for the worker’s compensation claim, the attorney handling a medical malpractice claim will generally spend most of her time and attention on the medical malpractice claim. However, to maintain the value of the medical malpractice claim, the attorney will delay the settlement of the worker’s compensation claim for as long as possible. This has a negative impact on the worker’s compensation claim as the longer the claim stays open, the more it will cost.
If you hear an employee threatening to sue the doctor over “medical malpractice,” suggest to the adjuster and to the employee the need for another doctor to evaluate the employee. When the second doctor evaluates the employee’s medical condition, in 99 percent of the cases they will find the first doctor acted with appropriate medical care.
Author Rebecca Shafer, JD, President of Amaxx Risks Solutions, Inc. is a national expert in the field of workers compensation. She is a writer, speaker, and website publisher. Her expertise is working with employers to reduce workers compensation costs, and her clients include airlines, healthcare, printing, publishing, pharmaceuticals, retail, hospitality, and manufacturing. See www.LowerWC.com for more information. Contact: [email protected].
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact [email protected].
My company decided to bring costs down by not simply allowing employees to head to the medical treatment center when they felt their injury justified attention like it did in the past. Instead they contracted with a company that put the employee on the phone with a nurse. I heard 4 or 5 pops in my arm when trying to push a heavy object. Not much pain and the nurse told me to take OTC pain killer and ice it and get back to work. Turns out I have what is called a “full distal biceps tendon rupture”. That translate into normal folk jargon as “surgery” and a year to fully recover. The phone conversation with the nurse was recorded and I did tell her that my arm was deformed compared to my other arm. My supervisor wrote this down in her version of the C-1 while I was talking on the phone. I get your drift about people expecting miracles. But it is not always the feelings of a worker they have been wronged. Sometimes it is objective fact supported by an MRI and an orthopedic surgeon.
got hurt at work setteled out of court come to find out my hip is what got ingered going in for surgery on the 18th of march this injury was done in 2014 haven’t been the same because of this haven’t been able to go backl to work an on disability
Work place injury went to ER where they missed diagnosed my foot. They said I had a sprained ankle. It was a crushed calcanious.I have a medmal case going. Will workers comp be entitled to the proceeds from the medmal case to recover the compensation they have paid out?
It is all a sham! They avoid paying, people give up and the racket goes on…all laws written for the employers and the insurance company. Been in it since 2000.
Settle and get out….
My surgeon and my worker comp attorney are not looking out for my best interest .What action can I take. worker comp case
I got hurt on November 28th and was given a panel of drs to choose from and i chooes the one that was closet to me and will he treated me like a 3rd class citizen it was like he had no time for me i ripped the ligaments and pulled the tendents off of my middle left finger and each time i went go and see him he did not spend no more then 2 to three minutes on me and only took the split of once to look at it the day before i way to see him i got up and was stretching like most people do when they get up when i felt something pop in my middle left finger and it hurt when i went to see him and i told him he was in the hall and looked at me and said he was stretching and i dont see how anything could pop from that the nurse want me to get a scane but he said no when he came in and look at my finger he only looked for a second and said it stiff and swollen and red i want you to go home and soak it in hot water has hot has you can take it so i did and that night it got real red and swollen up a lot and i call him and he was not in i was told by the nurse to go to the er and i did i had developed cellist in my ligaments and tendons and was put on heavy antibiotics and ever since that day when something popped in my finger i have lost movement and he still has done nothing the only med he gave me i should of never been give i have pancreatitis and the steroid he gave and told me to take put me litterly face down in my tolate i ended up passing out and i woke up on the floor i should of had went to the hospital but i had no phone and was home alone i was SWEET real bad and was havein problems breathing but i woke up the next day on the floor and then went in and read the warning on the pills he gave and shore enough it said it right there if you have pancreas do not take them and i made it clear to him from day one that i have pancreatitis and it is in my medical files the steroid are the only meds he ever wanted to give nothing for the swelling or the infection i had from day one it took going to the emergency room to get treatment every time i went and saw him with an appointment i always had to wait past my time some time 2 to 3 hours to see him one time i was there with appointment and as there waiting 4 hours to see him had a job interview i had to be at in an hour and ended telling the nurse that had to go i couldnt stay there any longer and she look at me and said that why are you leaving your no workers comp and i looked at her funny and just told her i had a job interview and that i could not wait any longer so i left and that week i got a bill for 150 for missing my appointment and that want the first on we had a good snowstorm hit us and i live up on top of a realy steep hill and it was iced over i call them and told them i would not be able to get because of the weather that i was snowed in and was told that that was ok he was to and that he wasnt going to be there either and sure enough at tbe end of the week i got a bill for a 150 for missing my appointment that he wasnt even there for and like i said he never spent no more time with me than a couple minutes and that was it now i have less function out of my finger today than i did befoe seeing him not happy at all was under his care from November to February 28th and have only gotten worse
Is it good to report a malpatrice claim if the doctor is decrease when I have a worker comp case
Who is representing the best interests if the injured workers? Answer—no one.