Resolution submitted to CMA
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.
This Resolution language has been - endorsed by the Specialty Delegation of the California Medical Association (CMA) - accepted by the CMA Council of Medical Services - approved by the CMA Board of Trustees (updated January 30, 2022)
Duty of Care is now official California Medical Association policy
