California: Panel Wars: Physician Bias

The Agamao case has something for everyone in the continuing “Panel Wars.” The perception of bias was not enough to prove bias in this case. The Applicant may have felt hostility by the doctor’s staff member, but there was no evidence the doctor himself expressed or implied bias against the Applicant. In addition, kicking out the representative of the attorney’s office was improper and against the CCP and case law that allows an Applicant’s representative or court reporter to be present, or an audio recording of a QME examination. This case does not really settle the issue of to what extent bias against an Applicant is sufficient to constitute grounds for a replacement panel. The regulations, Cal. Code of Regulations, title 8, sections 40 and 41, do not really tell us the extent of bias necessary to terminate the exam and qualify for a replacement panel. Is it enough for a perceived implied bias such as here, where the doctor’s staff member looked at the Applicant in such a way that the Applicant said it made her feel “very uncomfortable,” or is there supposed to be more? The majority says there has to be more while the dissent says implied as perceived by the Applicant is enough. This issue is not settled in this case at all.

In contrast, the Pratcher Appeals Board panel came to an opposite conclusion by upholding a trial judge’s finding that the QME’s comment “I like women thick” violated the required ethics and professional conduct requirements of QME physicians and ordered a replacement panel. See Cal. Code of Regulations, title 8, section 41(a)(5), which states that a QME is obligated to “Communicate with the injured worker in a respectful, courteous, and professional manner.” This was despite the fact that the QME in Pratcher had previously issued seven reports in the case. But the doctor’s conduct was so egregious that the QME’s conclusions could not be rehabilitated.

The PDF containing both cases is set forth below.