9 January 2019

GP loses court bid over 80/20 ruling

Medicolegal

A Queensland GP has lost a legal challenge in which he claimed that a lack of alternative medical services for patients and heated demand at the height of the coal-mining boom led him to breach the “80/20 rule”.

A committee of Medicare’s Professional Services Review found that Dr Manukharan Nithianantha, a GP in the remote Queensland mining town of Blackwater, had engaged in inappropriate practice by exceeding the benchmark of 80 services on each of 28 days in a 12-month period and in his use of the urgent after-hours MBS item 597.

Dr Nithianantha challenged the PSR committee’s preliminary finding in the Federal Court, arguing that exceptional circumstances were in play during the review period in the year to April 2014.

In submissions to the PSR, the principal of the North Blackwater General Practice said it was significant that on 11 of the 28 days when he allegedly provided more than 80 services, the total was pushed up by after-hours attendances.

He said he was the only doctor practising full-time at Blackwater in the review period. The town had a permanent population of 5500, with 2000-3000 fly-in fly-out workers and eight coal mines operating 24 hours a day.

Three other doctors were working in the town on a limited basis – two conditionally registered GPs at the Blackwater Health Care Centre and a locum on rotation at the Blackwater public hospital, which did not accept general practice patients.

Dr Nithianantha argued in part that it would be inappropriate to suggest that a practitioner should refuse to see a patient in order to avoid a breach of the 80/20 rule, or to hope that one of the other two GPs might be available, or that the area’s only ambulance would respond to a triple-zero call.

However, Justice Kathleen Farrell in the Federal Court said it was up to Dr Nithianantha to prove his contention that there was a lack of alternative services for his patients during the review period.

“The (PSR) committee was correct in its view that once the evidence establishes that the practitioner had rendered 80 or more attendance services on 20 or more days in a 12-month period, there is a practical onus on the practitioner to establish that there was an absence of alternative medical services for the practitioner’s patients on any of those days if that is the exception to the 80/20 rule relied on by the practitioner,” she said.

The judge said the committee, comprised of three GPs, had acknowledged evidence from Dr Nithianantha and a local councillor about the availability of alternatives.

However, it preferred evidence given by a practice manager that the Blackwater Health Care Centre was open from 8.30am to 5.30pm Monday to Friday and was generally staffed by two GPs. The manager said the practice had an after-hours answering machine that would direct callers to the hospital or a GP’s mobile phone.

PSR Director Professor Julie Quinlivan said the ruling, handed down on December 18, also upheld the committee’s understanding of the urgent after-hours item – that “urgency” is to be assessed by the medical practitioner only at the conclusion of their attendance on the patient.

“This ruling reinforces the message that a service should not be billed until it has been performed. After completing a service, then the practitioner will have a clear understanding of whether the need for the service was urgent,” Professor  Quinlivan said.

The court also rejected Dr Nithianantha’s arguments concerning the debate over the use of item 597 at the time and incorrect advice that he said came from the Provider Services Branch of the Department of Human Services.

The matter is yet to return to the PSR for a final determination.

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7 Comments on "GP loses court bid over 80/20 ruling"

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Uma Mahadeva
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Uma Mahadeva
4 months 6 days ago
I fully sympathise with Dr Nithianantha. He has fallen into the trap of the 80/20 rule. The last straw for my doing after hours service was the decision to make an attendance “urgent” by deciding after attending to the patient ! As a result I packed in my after hours work and now charge a Call in fee comprising $26 on top of the $49 for an item 5020. I tend not to use the 585 much as it might only be iron clad defensible if you end up sending the patient to hospital. That begs the question, why attend… Read more »
Manu Nithianantha
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Manu Nithianantha
4 months 8 days ago
I just saw this. I didn’t even realize this was getting media coverage. Honestly, the fact that if 2 conditionally registered part time GPs were practicing in the area and I was the only accredited full time GP for 5000-8000 people, is why I lost, means I have no chance of justice. But life goes on. I’m still a member of our community and still developing more health services in the district. This media article does not change anything. I encourage my colleagues to continue to live and cherish life and follow our hearts and appreciate our hugely supportive patients
David Dahm
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4 months 10 days ago

There were no commonly peer-reviewed and agreed standards that are open and transparent nor any early warnings? Why? Lou makes many valid points. Medicare Audit anxiety is at all time high when you are not clear what the rules are. How do you get prosecuted with invisible rules? Did his lawyers argue these fundamental points? Did anybody?

Lou Lewis
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Lou Lewis
4 months 11 days ago
Having just read the article “ GP loses court bid over 80/20 ruling” Posted byJULIE LAMBERT on 9/1/19 I would normally expect there would be outrage regarding this decision by the Federal Court to rule in favour of the Professional Services Review committee , but I doubt that our ‘esteemed’ self-proclaimed leaders will even make a comment on the unfairness of the 80/20 rule, let alone dare to go to bat for Dr Manukharan Nithianantha in any future appeals, if there is another avenue open to Dr Manukharan Nithianantha. I hadn’t given it much thought because, frankly, apart from a… Read more »
Anchita Karmakar
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Anchita Karmakar
4 months 10 days ago

Ama and racgl will not comment because tbey are part of the process in finding doctors guilty. This is the precise reason my case is questioning the entire psr process not just the 80/20 rule 🙂

Lou Lewis
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Lou Lewis
4 months 9 days ago
Anchita, I have just had a look at your article in the medical Republic in June 2018, and I am truly shocked about what is happening to you and the brave stand that you are taking against the PSR. I realise that what you are doing is for the benefit of the whole profession as I am sure that your legal bills and disruption to your personal and professional life will far exceed the amount that you are deemed to have overcharged Medicare. If you ever need any moral or professional support please do not hesitate to contact me as… Read more »
Anchita Karmakar
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Anchita Karmakar
4 months 9 days ago

You have no idea how much that comment meant for me. Thank you

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