Navigating claims around Lyme disease treatments
Lyme and other tick-borne diseases are complex medical conditions that lack a unified consensus on diagnostic testing and treatment. Because there is a lack of medical consensus on how to treat these conditions, Lyme-literate providers, who practice on the cutting edge of medicine, can find themselves vulnerable to medical board and other regulatory agency investigations.
A recent survey of 155 Lyme-literate medical providers found that 39% were reported to either a medical board, insurer, or subjected to a hospital-based quality improvement inquiry. This survey has drawn attention to the challenges faced by medical providers in treating these complex and often misunderstood conditions. Exploring the reasons behind the complexity of treating tick-borne diseases sheds light on the ever-increasing prevalence of Lyme disease and the growing demand for more comprehensive treatment approaches.
Understanding Lyme Disease
Lyme disease is the fastest growing vector-borne disease in the United States,with the CDC estimating 476,000 new cases each year. While many patients will improve after a short course of antibiotics, up to 35% will experience late-stage symptoms including cognitive dysfunction, memory loss, severe headache, fatigue, chest pain, shortness of breath, difficulty sleeping, lightheadedness, depression, and anxiety for which a single course of antibiotics does not resolve their symptoms.
In addition to Lyme disease, there are other tick-borne infections that may present in patients on their own, or in combination with Lyme disease, including Rocky Mountain Spotted Fever, Babesia, Bartonella, Ehrlichiosis, Tick Borne Relapsing Fever, Morgellons, Powassan Virus, and Alpha-gal Syndrome. Each of these diseases have different symptoms and some can cause death if not treated effectively.
Diverging Guidelines
The diagnosis of Lyme disease remains a complex process due in part to wide ranging symptoms and a poor CDC approved diagnostic test, which has been found to miss 71% of patients presenting with a Lyme rash greater than 5cm in size. For those reasons, many patients go undiagnosed for years, which in turn leads to more intense symptoms and a higher probability of treatment failure. Patients who do not recover after an initial round of treatment, typically 28 days of antibiotics, or who do not test positive with the flawed CDC approved test, are often denied further treatment due in part to the Infectious Diseases Society of America’s (IDSA) guidelines that urge against further treatment.
In the past, providers who treat patients beyond the IDSA’s recommendations have become susceptible to medical board proceedings despite their reliance on 700 peer-reviewed research studies indicating the bacteria can persist long after treatment has concluded. These providers are known as Lyme-literate providers, and they follow the guidelines produced by the International Lyme and Associated Diseases Society. Treatment from a Lyme-literate provider may consist of long-term antibiotics, herbal remedies, supplements, or a combination of various treatments.
This article aims to assist Lyme-literate providers, attorneys, and insurers in understanding potential liability that providers may face for prescribing treatment, including long-term antibiotics, beyond the IDSA guidelines and provide strategies to help reduce legal risks.
History of Claims
Due to the strong influence the IDSA has over medical journals, hospitals, and medical boards, the IDSA guidelines are often viewed as the standard of care for Lyme disease treatment in the medical community at large.
As a result, doctors who treat patients beyond the IDSA’s guidelines can find themselves susceptible to medical board proceedings despite scientific evidence showing Lyme disease can persist beyond standard treatment and despite their reliance on the International Lyme and Associated Diseases Society’s guidelines. For example, Dr. William Brown of Portland, Oregon was cited by a reviewer of an HMO insurance company for treating patients with Lyme disease. Upon investigation, the medical board allowed Brown to keep his medical license after he agreed to stop treating patients with Lyme disease, despite the fact that five out of six patients showed drastic improvement.
In response to the growing number of claims against medical providers, patients and Lyme disease activists have worked with state legislatures to pass laws that offer additional protection to Lyme-literate providers. For example, Illinois law states:
“The Department shall not revoke, suspend, place on probation, reprimand, refuse to issue or renew, or take any other disciplinary or non-disciplinary action against the license or permit issued under this Act to practice medicine to a physician… for experimental treatment for Lyme disease or other tick-borne diseases, including, but not limited to, the prescription of or treatment with long-term antibiotics.”
While laws that allow Lyme-literate providers to treat patients with long-term antibiotics are extremely valuable, they are limited to eight states that have passed similar statutes. For this reason, the following risk management techniques may help reduce some risk in treating beyond the IDSA’s guidelines.
Recordkeeping, Risk Management, and Practice Pointers
Adequate record keeping is crucial in the treatment of Lyme disease in showing that a differential diagnosis was made, and all treatment is medically necessary due to vast differences in treatment responses from patient-to-patient, inaccurate diagnostic tests, and complex treatment regiments. By thoroughly documenting the patient’s symptoms—both objective and subjective—potential exposure to tick bites, and initial test results, healthcare providers can establish a baseline for tracking the progressions of the disease and evaluating treatment effectiveness.
Some additional considerations include:
Lyme disease claims can be tricky due to the nature and complexity of emerging treatments as well as the lack of consensus on persistent infection in the medical field. In addition, professional liability insurance may not always cover medical board proceedings, so providers need to consider whether additional insurance would be beneficial. Medical board decisions can result in everything from a reprimand and fines to a license suspension or revocation. The procedures for complaints to medical boards vary widely state to state. Ordinarily, there is an initial investigation, which will culminate in a letter of concern, dismissal, or the opening of a formal investigation.
In preparing a response to the initial investigation, providers should seek legal counsel and be sure to request the complaint as well as all associated patient files up front. They should also request that the full chart be entered into evidence and hire a court reporter to document the interview. In the end, proper record keeping, patient communication, and keeping abreast of current practices and advancements in the area of Lyme disease are the best protection that medical practitioners can employ as they navigate the complicated environment posed by Lyme disease.
By implementing these risk management strategies and practice pointers, medical professionals can minimize the likelihood of being implicated in claims related to Lyme disease treatment. Consistently delivering high-quality, evidence-based care while maintaining clear and thorough documentation serves to protect both patients and healthcare providers, fostering a positive and effective treatment experience.
Clyde & Co. professionals discuss this year's key trends
Recognizing and battling confirmation bias
Jennifer Barrett is an associate attorney in WSHB's Portland office. jbarrett@wshblaw.com
