By Richard H. Adler, Attorney at Law
People injured in automobile accidents need professional health care, and normally seek the assistance of a primary health care provider such as a medical doctor, chiropractor, or osteopath. When the injury is to soft tissue in the neck and back, the public has generally considered chiropractic care to be an effective alternative approach to standard medical management. In recent years, research has increasingly confirmed the public view that chiropractic is an effective form of treatment of soft tissue injuries.1
Even as chiropractic has become a more mainstream choice of treatment for soft tissue injury, insurance companies resist payment for care, questioning whether chiropractic care is “reasonable and necessary.” Insurers often base their challenge on contractual language in their insured’s policy, stating that the insurer will pay only “reasonable and necessary” health care costs related to injuries sustained in the automobile accident.
The “independent medical examination” is a tool commonly used to challenge the reasonableness and necessity of chiropractic care. More often than not, the examiner selected is a medical doctor or panel of medical doctors. The examiner is asked, among other things, to express an opinion on the reasonableness and necessity of chiropractic care.
Washington State law appears to indicate, however, that the medical doctor is prohibited, by the scope of practice statute, from examining an individual for the purpose of determining the reasonableness and necessity of chiropractic care. Revised Code of Washington (RCW) 18.71.011 provides, in relevant part:
- A person is practicing medicine if he does one or more of the following:
- Offers or undertakes to diagnose, cure, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality;
- Administers or prescribes drugs or medicinal preparations to be used by any other person;
- Severs or penetrates the tissues of human beings;
- Uses on cards, books, papers, signs or other written or printed means of giving information to the public, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human disease or conditions the designation “doctor of medicine”, “physician”, “surgeon”, “m.d.”, or any combination thereof unless such designation additionally contains the description of another branch of the healing arts for which a person has a license: Provided however, That a person licensed under this chapter shall not engage in the practice of chiropractic as defined in RCW 18.25.005. (Emphasis added.)
This statute clearly indicates that the medical doctor cannot practice “chiropractic” as defined in RCW 18.25.005. When we turn to RCW 18.25.005, chiropractic is defined as:
For the purpose of chapters 18.25 and 18.26 RCW, the term “chiropractic” shall mean and include that practice of health care which. . .includes. . .physical examination to determine the necessity for chiropractic care, . . .
Clearly, the statutory definition of “chiropractic” includes the determination of the necessity for chiropractic care. Taken together, these statutory provisions appear to prohibit medical doctors from examining for the purpose of giving opinions on the necessity of chiropractic care.
Obvious issues arise for the medical doctor, insurance company, chiropractor, and patient when an IME is requested to determine the necessity of chiropractic care:
Medical Doctor: The medical doctor performing an IME and offering an opinion on the necessity of chiropractic care might be exposing him/herself to malpractice risks and disciplinary action since the Uniform Disciplinary Act, RCW 18.130, defines “Unprofessional conduct” to mean “(12) Practice beyond the scope of practice as defined by law or rule.”
Insurance Company: An insurer wastes money when an IME is conducted by a medical doctor to determine the necessity of future chiropractic care, when that doctor’s findings may be held to be invalid. Rather, the insurer should request an ICE (Independent Chiropractic Evaluation). If the insurer needs to have several issues addressed, then the insurer should request a multi-disciplinary panel examination that includes a chiropractor.
Treating Chiropractor: When the chiropractor learns that the insurance company is setting an IME, the chiropractor should seek clarification from an insurer on the purpose of the IME. If the IME is for the purpose of determining the necessity of future chiropractic care and that assessment is to be done by a medical doctor, the chiropractor should object, citing the scope of practice statute. The chiropractor may also choose to report the matter to appropriate authorities, as well as recommend that his/her patient seek legal counsel immediately.
Patient: A patient can object to the insurer’s IME request. If the insurance company is unwilling to arrange a proper IME, the patient should seek legal counsel to protect his/her rights and ensure he/she does not unnecessarily go through the ordeal of an IME.
Laws relating to personal injury claims can be extremely complex and subject to frequent change. An attorney’s expertise is invaluable, not only in dealing with legal-insurance matters, but also in the ability to explain and interpret the law. When we represent one of your patients, our experienced staff of highly trained professionals will be working to protect the legal rights of your patient and you as a health care provider.
1 Mealy and Fenelon, Early Mobilization of Acute Whiplash Injuries, British Medical Journal, p. 292 (1986); T.W. Mead, S. Dyer, et al., Low Back Pain of Mechanical Origin: Randomized Comparison of Chiropractic and Hospital Out-Patient Treatment, British Medical Journal, Vol 300: pp. 1431 – 1437 (1990).; P.G. Shekelle, A.H. Adams, et al., The Appropriateness of Spinal Manipulation for Low Back Pain: Project Overview and Literature Review, Rand, Monograph No. R-4025/1-CCR/FCER (1991); P.G. Shekelle, A.H. Adams, et al., The Appropriateness of Spinal Manipulation for Low Back Pain: Indications and Ratings by a Multi-Disciplinary Expert Panel, Rand, Monograph No. R4025/2-CCR/FCER (1991).