12-27-11; What In Tarnation is Evidence-Based Medicine? Is there any chance our Commissioners and Arbitrators will follow it in evaluation of WC claims, as the statutory scheme now requires?

Along with all the other interesting and quizzical things that happened in our Illinois state capitol during the spring legislative session this year, “evidence-based” medicine landed in the Illinois Workers’ Compensation Act in a number of interesting places. If you search the Illinois Workers’ Compensation Act, you may note our administrators are supposed to consider evidence-based medicine as part of analysis of utilization review protocols. The Act also mandates in Section 13 and 14 that both Commissioners and Arbitrators undergo training in “standards of evidence?based medical treatment.”

The View of EBM from Defense Lawyers in the Trenches

Your editor and the 14 lawyers at KC&A view evidence-based medicine in the simplest of terms—the medical/legal concept appears to require something more than subjective complaints to support continued requests for medical care and later, permanent disability. Why is this important? Well, hundreds of thousands of Illinois WC claims may be based on nothing but subjective complaints. In fact, millions and perhaps billions of dollars are awarded every year due to complaints of pain unsupported by diagnostics or other clinical evidence. We assure you that phenomenon may be one of a handful of things in the workers’ compensation matrix that are causing companies who have been in Illinois for years to start moving operations elsewhere.

What is wrong with awarding medical care and/or disability in whole or in part based on complaints voiced by claimants that are not supported by diagnostic or other objective clinical evidence? Well, duh. Claimants want money—the whole workers’ compensation system is about getting money from employers for three things—health care, lost time or TTD and permanent disability. The other side of the simple WC concepts is employers want to be sure to pay money when they owe it but only when they owe it. They don’t want to pay thousands of dollars to doctors and claimants solely due to claimants making unsupported and unsupportable soft-tissue complaints.

Defining EBM/EBP

So how will evidence-based medicine change all of that? Well, evidence-based medicine (EBM) or evidence-based practice (EBP) aims to apply best available evidence gained from scientific methods to clinical decision making in providing medical care. EBM seeks to assess the strength of evidence of the risks and benefits of treatments (including lack of treatment) and diagnostic tests.

Evidence quality can be measured based on source type from meta-analyses and systematic reviews of double-blind, placebo-controlled clinical trials at the top end, down to “conventional medical wisdom” at the bottom of the factor list, as well as other factors including statistical validity, clinical relevance, currency, and peer-review acceptance. EBM/EBP recognizes many aspects of health care depend on individual factors such as quality and value-of-life judgments, which are only partially subject to scientific methods. EBM/EBP seeks to simplify and clarify parts of medical practice that are in principle subject to independently verifiable scientific methods. These concepts seek to apply these methods to ensure the best prediction of outcomes in medical treatment, even as debate continues about which outcomes are desirable. As this scientific approach is used in any number of interrelated medical fields, including dentistry, nursing and psychology, evidence-based practice may be a more encompassing term than evidence-based medicine.

There are three distinct, but interdependent, areas of evidence-based medicine.

·         The first is to treat individual patients with acute/chronic problems with treatment reviewed and fully supported in the most scientifically valid medical literature. Medical practitioners select treatment options for specific cases based on the best research for each patient they treat.

·         The second is systematic review of medical literature to evaluate the best studies on specific topics. Increased use of the web and information technology turns large volumes of information into practical guides.

·         Third, evidence-based medicine can be understood as a medical "movement" in which advocates work to popularize the method and usefulness of the practice in the public, patient communities, educational institutions, and continuing education of practicing professionals.

Will the “IME doctor-bashing” in IL WC ever end? Can EBM/EBP stop this by requiring science and not just unsupported opinions?

One thing we hope EBM/EBP may stop is the concept of claimant attorneys and some Arbitrators personally and professionally attacking IME doctors. The pinnacle of this preposterous concept is the RICO action currently pending in Michigan against an Illinois trucking company, a TPA and an IME doctor—they are seeking treble damages due to denial of claims in reliance on an IME. Right behind this age-old and time-tested doctor-bashing concept is the same group focusing their cannons and criticism on UR doctors.

What we have asked IME doctors across our state and UR doctors across the U.S. to do is not simply provide their “personal medical” opinions as to whether surgery is needed or work accommodations might be appropriate. In our view, this sets up the comparison some Arbitrators and Commissioners love. If some hearing officers view the legal-medical decision as being “IME versus Treater”, the treater always wins, giving claimant whatever care/disability/accommodations they seek.

In our view, IME and UR doctors need to rely primarily on science—don’t just say surgery is or isn’t needed, add the clinical studies, the JAMA articles, the science of your decision. If you disagree with the treater, it is a complete mistake to simply state your opinions in comparison to the other doctor—look at why that doctor is claiming a course of treatment is reasonable, necessary and related and attack the science that may or may not be present. The goal of everyone in a disputed WC claim is to do or not do what is in the best interests of the patient—that should be the focus of the entire WC system in Illinois and across our great country.

A clear thought for everyone who has read the many newspaper and media articles about the “Menard C.C. scandal” where millions of dollars have been spent in the last several years for carpal tunnel syndrome at a single prison facility in rural Illinois. The state’s WC adjusting group hired an expert named Dr. Sudekum and he provided a bald medical opinion about causal connection with literally no scientific backing of any kind. In reliance on what we feel was an unscientific and unsupported-by-studies personal medical opinion, the State of Illinois stop defending itself and simply paid and paid and paid. If the State and its experts started to analyze medical records/case studies and WC claims from other prison facilities outside our nutty state and see no other prison on the planet has the same types of medical care or claims at all, evidence-based medicine might knock all of those claims out.

However, none of it will come to fruition if our hearing officers/administrators don’t understand it and start to follow it. Like UR and other new concepts, we are waiting and watching their rulings and will report as news comes in.