At some point in our careers, most of us have received a letter requesting a determination of “medical necessity.” We are familiar with the concept of musculoskeletal medical necessity based on history, physical examination, diagnostic studies, medications, and invasive procedures. Determining what is medically necessary, reasonable, and/or appropriate (MNRA) musculoskeletal medical care in a legal context can be challenging and frustrating.
Generally, for an orthopaedic surgeon, decisions about medical necessity depend on developing an accurate diagnosis based on objectively identifiable structural pathology. As the treating orthopaedic surgeon, the selection of MNRA treatment (as learned in residency and through Continuing Medical Education [CME], American Board of Orthopaedic Surgery exams, and recertification processes) is rarely controversial.
However, treatment is sometimes directed toward subjective symptoms, very often by expanded providers such as chiropractors, naturopaths, physician assistants, nurse practitioners, general practice osteopaths, acupuncturists, massage therapists, and physical therapists. This expansion of providers who offer opinions on “medical necessity” creates additional difficulty in discerning a correct answer. In many cases, the correct answer may depend on the context within which the question is asked.
Expanded providers, expanded questions
When an expanded provider case reaches the adjudicators, the responsibility to determine necessity typically is assigned to an orthopaedic surgeon. The orthopaedic surgeon acts as expert and arbitrator performing an independent medical exam (IME) or records review and provides an explanation as to whether the treatments rendered were or were not medically necessary. One of the challenges for the orthopaedic surgeon is that these expanded providers often comment (and testify) about how symptoms and function are improving after their treatments. These explanations may attempt to justify the treatments as medically necessary, despite frequent incongruity of an expected clinical course.
Prolonged treatments by extended providers can place financial burdens on the payor. Receiving potentially unnecessary care also can disrupt the patient’s daily lives, as many extended providers request attendance at two to three appointments every week. It has been reported that some patients receiving prolonged treatments may develop a disability conviction, becoming convinced they need to continue with treatments to “heal.”
The orthopaedic surgeon’s role in these cases is to determine what treatment was medically necessary. For example, the case of Patient A, a 25-year-old woman involved in a motor vehicle collision (MVC). At the scene she was conversant, ambulatory and sought no medical evaluation or treatment until seeing a chiropractor two days later. Her treatment was based entirely on subjective symptoms and chiropractic findings. She was never referred to an orthopaedic surgeon or other medical physician. For the next year she underwent more than 160 treatment visits (80 chiropractic, 40 massages, and 40 acupuncture), all of which were deemed necessary and related to the MVC and served to justify expanding the number of providers.
Reviewing this patient’s course of treatment, it was unclear which of the 160 treatments she received were necessitated by the MVC. Clearly, the inference is that the insurer should be financially responsible for the treatments. This case lacked a thorough history and physical and documentation to justify a large number of treatments. An appropriate initial history and physical examination with documented objective physical findings and/or supporting clinical studies would typically be required to determine the correct diagnosis. Once the correct diagnosis is established, the orthopaedic surgeon or other trained physician can determine if the incident caused or contributed to the diagnosis (depending on the legal threshold or jurisdiction) by following the National Institute for Occupational Safety and Health’s six-step process to establish reasonable and appropriate treatment options (Table 1).
The orthopaedic surgeon reviews the medical literature for anticipated, expected, and predicted responses to treatments. Objective evidence of a treatment response would support a physiological cause for the symptoms. On the other hand, inconsistent responses or worsening of the condition that conflicts with the natural history of the diagnosis would suggest non-physiological components, as described in the biopsychosocial model of medicine. In this case, the selected treatment may initially have been appropriate, but failure to demonstrate improvement would not support its continuation.
In determining which treatment was MNRA, one must keep in mind that medical necessity is a legal doctrine in the United States based on evidence-based clinical standards of care. In contrast, unnecessary healthcare is that which lacks such supporting scientific evidence. Orthopaedic surgeons can consult the guidelines and opinions on MNRA that have been issued by several agencies, from the Centers for Medicare and Medicaid Services to state-specific statutory guides to commercial insurance carriers to professional health organizations like AAOS.
The term “standards of practice” also has a different meaning in the courts. In tort law, “standard of care” is defined as only the degree of prudence and caution required of an individual who is under a duty of care and, therefore, determining whether standard of care was followed is dependent on circumstances. The trier of fact has the responsibility of determining whether the standard of care has been breached, or, as described in Vaughn v. Menlove (1837), whether the individual “proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances.”
Patient A, resolved
For Patient A, working through the review process, one could determine that the care that Patient A received was not reasonable and necessary because of the MVC. However, a reviewer’s opinion must be supported by appropriate scientific evidence. Simply stating that the treatment for Patient A was not reasonable and necessary as a result of the MVC “based on my years of practice and training” is insufficient and inappropriate.
The same would be true in consideration of Patient B’s case. Patient B, age 57, sustains a LisFranc fracture after a car tire runs over her foot. Are the multiple injections and braces she receives (at a cost of more than $125,000) medically necessary? For Patient C, a 45-year-old man whose truck was rear-ended and who received more than 50 injections from a naturopathic physician over the next year (with no additional diagnostic studies or objective abnormal findings), are more injections necessary, as the naturopath contends?
Given the variance in definitions of MNRA, there are no easy answers to these questions—in the case of Patient A or any other case for which an orthopaedic surgeon might be consulted. A treatment may be determined to meet the criteria in one case but may be denied in another.
For orthopaedic surgeons who want to develop and improve their handling of the medical and non-medical components of workers’ compensation or forensic science cases, the 23rd Annual AAOS Workers’ Compensation and Musculoskeletal Injuries Course will delve into the real-world cases of Patient A, B, C, and others—exploring the current legal, administrative, ethical, and insurance issues in a variety of scenarios.
J. Mark Melhorn, MD, FAAOS, is a Clinical Associate Professor in the Department of Orthopaedics at the University of Kansas School of Medicine–Wichita.
Marilyn L. Yodlowski, MD, PhD, FAAOS, is an orthopaedic surgeon at Med Connect Pro in Beaverton, Ore.
Drs. Melhorn and Yodlowski are codirectors of the AAOS Worker’s Compensation Course.
Sign Up Now for November Courses
The 23rd Annual AAOS Workers’ Compensation and Musculoskeletal Injuries Course will be offered as a virtual event, taking place Nov. 5–7. Featuring livestreamed lectures, panels, and discussions, this online course will provide fresh perspectives on causation, diagnosis, treatment options, and strategies for handling medical and non-medical components associated with treating workers’ compensation patients. New course topics include credibility, work ability, telehealth, malingering, and others.
Preceding the course on Nov. 4 will be the new half-day course, Demonstrating Competency – Independent Medical Examination (IME) / Qualified Medical Evaluator (QME) – Using Case Examples. This course, also delivered online, will help attendees hone their IME/QME skills by working through collections of vignettes followed by sample IMEs and case discussions.
Register for both courses and save $150 on combined fees. Both courses offer CME and QME credit. For more information, visit www.aaos.org/WC2021.