Nurse case managers (NCMs) are an integral part of managing the medical treatment for injured workers in today’s workers’ compensation system. Nurse case managers provide beneficial services such as coordinating medical care, issuing prompt updates on recent medical treatment to the carrier and defense attorneys, and providing a consistent and reliable medium of communication between the authorized physicians and the carrier. While the services of a nurse case manager certainly help the management of a workers compensation claim, there is an alarming and growing trend where claimant attorneys around the state are threatening civil liability for a nurse case manager’s alleged tortious interference with the doctor-patient relationship.
While there is no express cause of action for intentional or tortious interference with the doctor-patient relationship, claimant attorneys are creating a pseudo cause of action under the umbrella of tortious/intentional interference with a contractual or business relationship. The following four elements are required in order to establish a claim for tortious interference with a contractual or business relationship: (1) the existence of a business relationship or contract; (2) knowledge of the business relationship or contract on the part of the defendant; (3) an intentional and unjustified interference with the business relationship; and (4) damage to the plaintiff as result of the interference. Howard v. Murray, 184. So. 3d 1155 (Fla. 1st DCA 2015). Elements one and two are a given as there is undoubtedly a doctor-patient relationship (i.e business or contractual relationship) between an authorized physician and a workers’ compensation claimant. Elements three and four will likely be the source of litigation if and when this issue makes it way to circuit court.
Over the past year, we have seen a dramatic rise in threats from claimant attorneys around the state for tortious interference against nurse case managers. The basis of these threats is that the nurse case managers are allegedly forcing the authorized physicians to give favorable opinions and dictating the type and extent of treatment the doctor should provide. Our firm has represented several nurse case managers in deposition where the claimant’s attorney has alleged the NCM has pressured or unduly influenced the doctor to refrain from recommending a specific procedure, medication, or service such as attendant care. The claimant attorneys are arguing that the NCMs are acting as an agent of the carrier and pressuring the authorized doctors to alter their opinions in fear from losing patients in the future. This undue influence represents the intentional and unjustified interference while the failure to receive the appropriate care from the authorized physician represents the damage.
I have yet to personally see a single case where these allegations were true and I have not seen a case make it to circuit court. However, it is imperative defense attorneys and carriers make sure the nurse case managers are staying within their defined duties and responsibilities. A nurse case manager is primarily responsible for coordinating and managing care. They schedule appointments for claimants, attend appointments, obtain and forward records and prescriptions, and relay directives for authorization from the carrier. While the vast majority of nurse case managers do exactly that, it is vital we ensure managers are not inputting their own personal views or opinions when speaking with the doctors. Towards that end, I highly recommend that carriers explain to the nurse case managers from the onset that all reports should be free of opinion and colorful language and should be clear, succinct, and entirely factual. Unless the nurse case manager is an employee of the carrier, generally their reports must be produced to claimant attorneys upon request and the reports can serve as evidence for civil litigation. While we all love our nurse case managers and the work they do, it is important we make sure the medical management and reporting is done properly to avoid any potential civil liability in the future.