Tag Archives: doctor

CMS Extends Waivers under the ACO Shared Savings Program

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

On November 2, 2011, the Centers for Medicare and Medicaid Services (CMS) promulgated the interim final rule on fraud and abuse waivers for Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program. The interim rule can be found at 76 Fed. Reg. 67801. The waiver was granted pursuant to the agency’s authority under the Affordable Care Act, specifically, 42 U.S.C. § 1899(f).

You can read our prior blog postings on the ACO waiver programs here.

Normally, interim final rules are only permitted to remain in effect for a maximum of three years (see 69 Fed. Reg. 78422). CMS regulations require the agency to publish a final rule within three years of a proposed or interim final rule. As the interim final rule is set to expire on November 2, 2014, the agency took advantage of the procedure that allows it to extend the life of the rule for an additional year by publishing a notice explaining the reasons why the regular timeline was not met.

Explanation for the Extension.

CMS stated that it is in the process of preparing a final rule, and allowing the interim final rule to expire would create a great deal of legal uncertainty for ACOs currently participating in the Shared Savings Program. According to CMS, this uncertainty has the potential to disrupt ongoing ACO business, plans, and operations.

Ultimately, CMS has learned through the course of its operation of the Shared Savings Program that certain modifications to the program are necessary. Although these modifications are not yet defined completely, CMS nevertheless believed the prudent course of action was to maintain the status quo during the rule making process.

Check back with us for updates on the process and any further information as the final rule is developed.

Comments?

Have you considered joining an ACO? Why or why not? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced With Healthcare Business Practices.

The Health Law Firm routinely represents physician groups and practices with issues involving establishing, licensing, selling, merging, and intergroup affiliation. If you are considering establishing an ACO or have been approached to become a participant in one, you can contact The Health Law Firm at (407) 331-6620 or (850) 439-1001 or you can visit our website at http://www.TheHealthLawFirm.com.

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.

“Doctor of Death” Trial Could Ignite Stricter Oversight in the Healthcare Industry

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On paper, one Detroit-area oncologist appeared to be a wildly successful professional with impeccable medical credentials. According to his medical practice’s website, he went to medical school at Cornell Medical College, did an internal medicine residency at Maimonides Medical Center in Brooklyn, New York, and then completed a medical oncology fellowship at Memorial Sloan-Kettering Cancer Center, a very well-respected facility. The oncologist ran a professional practice of seven locations with a total of 60 employees.

However, on September 24, 2014, his reputation and accolades faded when he pleaded guilty to intentionally and wrongfully diagnosing healthy patients with cancer. He also admitted to giving these patients chemotherapy solely for the purpose of making a profit.

For healthcare professionals, this act is an obvious violation of the oath they took to serve their patients and to do no harm. But, if this oncologist is found guilty, you can be assured that oncologists, physicians, dentists, and all other healthcare professionals will be under a microscope to help ensure that something this egregious and dishonest does not happen again.

Allegations Against the Oncologist.

The details of the allegations, obtained from various employee whistleblowers, range from the mundane to the horrific. In the Federal Bureau of Investigation’s (FBI) complaint against the oncologist, there are dozens of examples of his wrongdoing described. The activities of which the doctor is accused include:

- Administration of unnecessary chemotherapy to patients in remission;
– Deliberate misdiagnosis of patients as having cancer to justify unnecessary cancer treatment;
– Administration of chemotherapy to end-of-life patients who would not benefit from the treatment;
– Deliberate misdiagnosis of patients without cancer to justify expensive testing;
– Fabrication of other diagnoses such as anemia and fatigue to justify unnecessary hematology treatments; and
– Distribution of controlled substances to patients without medical necessity.

There is also an issue of Medicare fraud. For the past six years, the doctor is accused of seeing a large number of patients per day. He would then bill every patient at the highest possible billing code, even though he allegedly only spent a few minutes with each patient. The amount of money related to the doctor’s Medicare fraud scheme is a staggering $35 million.

Click here to read the FBI’s complaint against the oncologist.

Charges.

The oncologist is facing a an abundance of legal issues. In all, the oncologist pleaded guilty in U.S. District Court to 13 counts of healthcare fraud, one count of conspiracy to pay or receive kickbacks and two counts of money laundering. He will be sentenced in February 2015 and faces up to 175 years in prison.

Other Healthcare Providers Could Pay for Oncologist’s Greed.

If the oncologist is found guilty, the aftereffects will surely be felt throughout the industry. For example, healthcare providers will need to more closely watch their Medicare billing. Any reimbursement submitted to Medicare will be under tight scrutiny. Keep in mind that Medicare pays close attention to the percentage of patients billed at each level. If a physician bills for every patient at the highest level, it’s going to send up a huge red flag. If you or your practice is being audited, click here for some tips on responding to a Medicare audit.

On top of the extensive healthcare fraud charges, the oncologist allegedly misled, endangered, and injured his patients. He betrayed the trust and privilege given to him as a physician by society, all in the name of greed. According to an article in The Washington Post, more than one patient died under the care of the oncologist. These families are now left to figure out whether their loved ones actually had cancer and died of chemotherapy complications, or whether they died of an actual cancerous ailment.

It’s crucial to remember that cutting corners to make a profit as a healthcare professional leads to great ramifications. Once a healthcare professional’s license and reputation are questioned, it is not an industry one can easily get back into.

Comments?

In your opinion, what is the worst offense this oncologist allegedly committed? Explain. Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

Sullivan, Gail. “‘Death Doctor’ Who Profited from Unnecessary Chemotherapy for Fake Cancers Could Resume Practice in 5 Years.” The Washington Post. (October 1, 2014). From: http://www.washingtonpost.com/news/morning-mix/wp/2014/10/01/death-doctor-who-profited-from-unnecessary-chemotherapy-for-fake-cancers-could-resume-practice-in-three-years/

“Prominent Michigan Cancer Doctor Pleads Guilty: ‘I Knew That It Was Medically Unnecessary’.” The Inquisitr. (September 24, 2014). From: http://www.inquisitr.com/1485160/prominent-michigan-cancer-doctor-pleads-guilty-i-knew-that-it-was-medically-unnecessary/

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Sexual Misconduct by Rogue Employees Can Cost Big Money: Your Responsibility as an Employer

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Johns Hopkins Health System agreed to shell out $190 million to more than 7,000 women and girls, in one of the largest settlements ever in the United States involving sexual misconduct by a physician.

A gynecologist, practicing in a Baltimore-based Johns Hopkins Hospital, one of the nation’s most prestigious medical institutions, was accused of using a tiny camera to secretly take videos and pictures of his patients. The doctor worked at the hospital for 25 years, but was fired after admitting to the misconduct and surrendering his recording devices to authorities.

This is a chilling example of how employers can be held responsible for “rogue” employees clearly not working under the consent of the employer. In general, employers have a responsibility to properly supervise their employees’ actions. As in this case, failure to do so can cost millions.

Background of the Case.

According to the Wall Street Journal, a co-worker tipped off Johns Hopkins officials that the gynecologist was wearing a pen around his neck that looked like a camera. In February 2013, an investigation revealed that the gynecologist secretly used the device in question to photograph and videotape thousands of women and girls during pelvic exams. The investigation found that the doctor’s camera captured 1,200 videos and 140 images of his patients, that were then stored on his computer. The doctor was fired in February 2013, and committed suicide days later.

Click here to read the entire article from the Wall Street Journal.

“Rogue” Employee.

In this case, Johns Hopkins states that insurance will cover the entire $190 million settlement. The preliminary agreement is awaiting final approval from a judge. In a statement, Johns Hopkins’ attorney said that the hospital was unaware of the doctor’s conduct, and that he had become a “rogue” employee. The hospital sent out letters of apology to the gynecologist’s patient list, calling the incident a “breach of trust.”

Click here to read all of the statements from Johns Hopkins Medicine in regard to this incident.

Employer’s Responsibility.

The lawsuit against Johns Hopkins alleged that the hospital failed to properly supervise the doctor and should have known of his alleged misconduct.

This situation brings up an interesting point, even though the employee was acting on his own accord, the health system would still likely have been held liable if the case was not settled.

Employers are generally “vacariously liable” for their employees’ actions. The basic idea of vicarious liability or the doctrine of respondeat superior is that an employer is held responsible for the negligent acts of its employee that cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment.

To establish that the employee’s conduct was within the scope of employment:

1. The conduct must have occurred substantially within the time and space limits authorized by the employment;
2. The employee must have been motivated, at least partially, by a purpose to serve the employer; and
3. The act must have been of a kind that the employee was hired to perform.

In certain circumstances, including the example of the gynecologist, an employer’s vicarious liability can extend to intentional or even criminal acts committed by the employee.

Vicarious liability is a powerful concept and, as evident by the Johns Hopkins case, can result in an employer being responsible for significant sums of money. Employers should institute policies which curb activities that could be injurious to others. The employer has a responsibility to monitor employees and immediately investigate any suspicious activity.

Despite the fact that Johns Hopkins acted quickly, the hospital system will still most likely be left holding a settlement sum of $190 million for actions of an employee.

Comments?

As an employer, how do you make sure your employees aren’t acting on their own or violating company policies and procedures? Please leave any thoughtful comments below.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of sexual misconduct and other complaints from employees and patients. We represent employers in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

Linderman, Juliet. “Hopkins Pays $190M in Pelvis Exam Pix Settlement.” Associated Press. (July 22, 2014). From: http://apne.ws/UquXOI

Levitz, Jennifer. “Johns Hopkins Agrees to $190 Million Exam-Photos Settlement.” Wall Street Journal. (July 21, 2014). From: http://online.wsj.com/articles/johns-hopkins-hospital-agrees-to-190-million-exam-photos-settlement-1405961572

Johns Hopkins Hospital. “Statement from Johns Hopkins Medicine on the recent news surrounding Nikita Levy, M.D.” Hopkins Medicine. (July 21, 2014). From: http://www.hopkinsmedicine.org/news/Nikita_Levy.html

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Pediatricians Who Are Targets of Medicaid Audits Should Request Hearings on the Final Audit Report Results

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We have recently been contacted by several pediatric practices that were subject to Medicaid audits. In several cases, the pediatricians received the final audit reports (FARs) stating that they owed Medicaid refunds, because of overbillings, in the tens of thousands of dollars.

With such demands for repayment of the alleged overpayments also come:

  1. Fines;
2. Penalties;
3. Requirements to sign agreements to refrain from such practices in the future;
4. Requirements to have personnel retrained; and
5. The specter of future audits.

In many cases, Medicare and Medicaid auditors may swiftly review supporting medical records and overlook key components that support the level of services (or CPT codes) that were billed, erroneously downgrading the code or disallowing the charge completely. Other times the pediatric or medical practice may have only provided partial records and have left out some key records that would support the codes billed.

Challenging the Determination.

Unfortunately, after receipt of the FAR, the only hope of challenging the determination would come by filing a written request or petition for a formal hearing in, specifically, a Medicaid case. In Medicare cases, other interim reviews or appeals are available.

If you have additional records you failed to provide, or if after a thorough review of the records you did provide show that all of the elements of a CPT code you billed (e.g., 99204 or 99205) were documented, then we recommend that you immediately retain the services of a board certified health lawyer experienced with Medicare and Medicaid audits to file a petition for you. Be sure a written request or petition for a formal hearing is filed within the time stated in the letter you receive, even if you must retain an attorney afterwards. Remember that the request must be in writing and must be received by the agency at the address specified before the date in the letter has passed.

You can always work out a settlement agreement, repayment agreement, or agreement for a different resolution of the situation. What you can’t do is to go back and get back your hearing rights after they have expired.

Steps to Take if you Receive Notice of an Audit.

What you should do immediately upon receiving notice of an audit:

 1. Retain the services of a board certified health lawyer who is experienced with such audits.

 2.  In a timely manner, provide all relevant documents pertaining to the audit, properly labeled and pages numbered (note:  in many instances, this may include more than just the minimum documents the audit requested).

 3. Watch for any interim, initial or preliminary audit reports (PARs), and be prepared to rebut it in detail if it requests a refund.

 4. If you receive a FAR demanding a repayment, be prepared to hire a board certified health lawyer who is experienced with such audits, if you have not already done so.

 5. If you disagree with the findings in the FAR, be sure the agency receives your request for a formal hearing to challenge the determination, prior to the date given in the FAR or demand letter.

For additional details, pointers and tips on this subject you may click here to read the prior blog we have published.

For information, details, pointers and tips on the subject of Medicare audits, you may click here to read the prior blog we have published on this.

Comments?

Do you know what to do if you are the target of a Medicaid audit? Did you know about requesting a hearing on the final audit report results? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Medicare and Medicaid Cases.

Attorneys with The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program. We also handle Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S.

Our attorneys also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.

 

Disruptive Physicians: Nobody Likes a Nuisance

IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Christopher E. Brown, J.D., The Health Law Firm

Identifying and eliminating disruptive physicians has become a paramount concern of many hospitals and healthcare systems. Disruptive physicians hinder the safe and orderly operation of a healthcare facility and are considered a threat to the safety of patients. Disruptive behavior can impact staff morale and can increase the risk of liability to all employers.

A recent New York case demonstrates this. According to a journal for surgeons, a New York doctor is being held responsible for an ongoing worker’s compensation bill as the result of a violent outburst he directed toward a physician assistant (PA). The physician allegedly lost his temper during an open-heart surgery when the physician assistant accidentally suctioned some heart tissue. The physician allegedly threatened that he would “throw the physician assistant through the wall” if it happened again.

The physician assistant has claimed that the threat deeply affected her ability to perform her job, as well as put the patient’s safety at risk. A psychologist diagnosed the PA with post traumatic stress disorder (PTSD) caused by the incident. Unable to work because of the trauma allegedly caused by the disruptive physician, the PA now reportedly collects $2,415 a week in workers’ compensation.

To read the full article from Outpatient Surgery, click here.

Implications of Disruptive Behavior.

Disruptive behavior from a physician can lead to dire consequences for both the physician and his or her employer. Lawsuits and liabilities, such as those in the New York case discussed above, can detract from a safe, cooperative, and professional healthcare environment.

Disruptive behavior can negatively affect the quality of patient care. Hospitals claim that this happens because of conduct that:

-    Disrupts or impedes the operations of the hospital;

-    Adversely affects the ability of others on the healthcare team to do their jobs;

-    Creates an unprofessional or hostile work environment for hospital employees;

-    Interferes with coworkers’ ability to practice competently;

-    Prevents effective communications among healthcare providers and staff;

-    Disrupts the continuity of care a patient receives; and

-    Adversely affect the community’s confidence in the hospital’s ability to provide quality patient care.

Being accused of being a disruptive physician may lead to adverse action against clinical privileges, action to drop the physician from insurance panels, consequential action by the state medical board or licensing authority, loss of specialty certification, termination of employment contracts and other various consequences.

What Conduct May Cause One to be Labeled a Disruptive Physician?

A hospital’s creed, ethical statement, or code of conduct, as well as Joint Commission Standards, and medical staff bylaws can define what constitutes disruptive behavior. Case reports, hospital policies and actual cases in which we have defended physicians demonstrate the types of acts that can be used to label a person as “disruptive.” Disruptive behavior includes, but is not limited to:

-    Verbal attacks that are personal, irrelevant to hospital operations, or exceed the bounds of professional conduct;

-    Shouting, yelling, or the use of profanity;

-    Verbally demeaning, rude or insulting conduct, including exhibiting signs of disdain or disgust;

-    Inappropriate physical conduct, such as pushing, shoving, grabbing, hitting, making obscene gestures, or throwing objects;

-    Inappropriate comments or illustrations made in patient medical records or other official documents, impugning the quality of care in hospital facilities, or attacking particular medical staff members, personnel, or policies;

-    Belittling remarks about the patient care provided by the hospital or any healthcare provider in the presence or vicinity of patients or their families;

-    Non-constructive criticism that is addressed to the recipient in such a way as to intimidate, undermine confidence, belittle, or imply stupidity or incompetence;

-    Refusal to accept, or disparaging or disgruntled acceptance of, medical staff assignments;

-    Inappropriately noisy or loud behavior in patient areas;

-    Making sexual or racial jokes;

-    Physically touching another professional, nurse or staff member, especially those of the opposite sex;

-    Making sexually suggestive remarks;

-    Commenting on another person’s body parts;

-    Threatening violence to another;

-    Throwing surgical equipment, medical supplies, charts, or anything else at or around anyone else; or

-    Other disruptive, abusive, or unprofessional behavior.

I previously wrote a two-part blog series detailing the types of conduct considered disruptive, as well as the consequences associated with disruptive behavior and how you as a physician can avoid such pitfalls. To read part one of the blog series, click here. To read part two of the blog series, click here.

Physicians: Proactively Educate Yourself.

It’s wise to review your hospital’s or institution’s policies on disruptive behavior. Arming yourself with the knowledge necessary to avoid such accusations is imperative in protecting your reputation and career.

No one lives in a glass house, but pretend you do. Someone can always observe your actions in the office or hospital. Once you have been labeled a disruptive physician, others may be closely, at times, scrutinizing you for anything you may do wrong. You will make yourself a target for possible false allegations and accusations. The healthcare industry is a demanding and stressful field. It’s understandable that potential outbursts can occur; control yourself and don’t let them.

Comments?

Have you ever been accused of being a disruptive physician? Have you ever been around one? What are some proactive tactics physicians can take to prevent any outbursts or behavioral conduct that would be deemed as disruptive? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Source:

Burger, Jim. “Doc Threatens Physician’s Assistant During Open Heart Surgery: I’m Going to Put Your Through the Wall.” Outpatient Surgery. (July 14, 2014). From: http://www.outpatientsurgery.net/surgical-facility-administration/legal-and-regulatory/doc-threatens-physician-s-assistant-during-open-heart-surgery-i-m-going-to-put-you-through-the-wall–07-14-14

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Florida Supreme Court Overturns Medical Malpractice Caps

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Florida’s Supreme Court ruled 5-to-2 in favor of invalidating medical malpractice caps on non-economic damages. The initial legislation was put into place in 2003 by the Florida Legislature due to an alleged medical malpractice crisis. The caps limited payments to patients for non-economic damages at $500,000 in most malpractice cases and $1 million in cases involving deaths. However, on March 13, 2014, the Supreme Court concluded that the cap on wrongful death non-economic damages violates the state Constitution’s equal protection clause.

This decision by Florida’s highest court makes Florida the seventh state to make such a ruling that such limitations are unconstitutional. There are 35 states that currently have some type of cap on medical malpractice awards.

This decision stirs up harsh criticism from doctors, and praise from trial attorneys.

History of the Caps on Medical Malpractice Lawsuits.

The damages caps were initiated in 2003 by former Governor Jeb Bush, backed by doctors, hospitals and insurance companies. Supporters argued that reforms were needed to curb the outbreak of medical malpractice costs. The caps were also initiated in an effort to lower the cost of malpractice insurance rates and to keep doctors from moving out of the state. According to Health News Florida with the caps, the number of medical malpractice lawsuits fell, which was interpreted as a sign that the caps discouraged trivial lawsuits. To read the entire article from Health News Florida, click here.

Harsh Words from Florida Medical Association.

The Florida Medical Association (FMA) President Alan Harmon, M.D., wasted no time in releasing a statement of discontent. In a press release Dr. Harmon stated, “The FMA is extremely disappointed in the Supreme Court’s decision. This decision imperils our considerable efforts to make Florida the best state in the nation for physicians to practice medicine and for patients to receive care.”

Dr. Harmon mentions that without caps to help regulate out-of-control litigation, many physicians may move out of the state, and few out-of-state physicians will look to locate to Florida.

To read the full press release from Dr. Harmon, click here.

What This Means for Health Care Professionals.

Now that medical malpractice caps are gone, trial lawyers will be refocusing on lawsuits. Health care professionals need to carefully evaluate each patient before treatment begins, even consulting with specialists when necessary. Detailed documentation is also important. Make sure everything is properly charted in the patient’s medical record. As a health care professional, its important to have an open line of communication with your patient, so that he or she knows and understands his or her medical treatment.

Get Professional Liability Insurance Now.

It is now more important than ever to have good professional liability insurance. The truth of the matter is that all health care professionals should protect themselves by obtaining a personal professional liability insurance policy. A good policy will provide medical malpractice and, very importantly, licensure protection coverage. The cost on these policies varies, but it is generally quite affordable, often costing little more that $10 to $15 a month. If you do not already have it, call Healthcare Providers Service Organization (HPSO), Lloyd’s of London, CPH & Associates Insurance, or another insurance company to discuss obtaining professional liability insurance.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

Our firm regularly represents physicians, dentists, nurse practitioners, pharmacists, massage therapists, mental health counselors, registered nurses (RNs), assisted living facilities (ALFs), home health agencies (HHAs), nurse practitioners, lab technicians, occupational therapists, physical therapists (PTs), social workers, physician assistants, psychologists and other health professionals in many different legal matters.
Services we provide include representation before your professional board in Department of Health investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a health care provider, how do you feel about the malpractice caps being thrown out? Will it make you think twice about taking certain cases or treating certain patients? Please leave any thoughtful comments below.

Sources:

Gentry, Carol. “FL Malpractice Caps Thrown Out.” Health News Florida. (March 14, 2014). From: http://health.wusf.usf.edu/post/fl-malpractice-caps-thrown-out

Klas, Mary Ellen. “Florida Supreme Court Tosses Out Medical Malpractice Cap on Damages.” Tampa Bay Times. (March 13, 2014). From: http://www.tampabay.com/news/politics/florida-supreme-court-tosses-out-medical-malpractice-cap-on-damages/2170030

VanSickle, Erin. “Supreme Court Invalidates Medical Liability Caps.” Florida Medical Association. (March 13, 2014). From: http://www.flmedical.org/Supreme_Court_invalidates_caps.aspx

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

AHCA Expert Not Allowed to “Use His Discretion” in Deciding Claims Were Improper in Medicaid Appeal Hearing

FACTS: The Agency for Health Care Administration’s (“AHCA”) Office of Medicaid Program Integrity audited Dr. Rao, an authorized provider of Medicaid services, for claims between July 1, 2007, and June 30, 2009, and found him to be in violation of certain Medicaid provider policies. AHCA prepared a Final Audit Letter on June 1, 2011, notifying Dr. Rao that he had been overpaid by the Medicaid program by $110,712.09 for services provided during the audit period. Dr. Rao’s administrative hearing challenging AHCA’s overpayment determination was pending before DOAH. On August 17, 2012, Dr. Rao filed an unadopted rule challenge, alleging that AHCA’s overpayment determination was based on unadopted rules regarding the medical necessity of long-term monitored electroencephalograms (LTM EEGs).

OUTCOME: The ALJ found that AHCA’s peer review expert applied certain standards to the Medicaid claims he examined in conducting the Medicaid audit, but “exercised his discretion as to whether to apply them based on the specifics of each patient’s medical records.” The ALJ dismissed the unadopted rule challenge, explaining that “where application of agency policy is subject to the discretion of agency personnel, the policy is not a rule. . . . The medical standards at issue in this case are not self-executing and require the exercise of discretion in their application.” The ALJ noted that “the medical standards of practice must be applied on a case-by-case basis to determine whether the services provided were medically necessary, and provided both an appropriate level of care and standard of care ‘customarily furnished by the physician’s peers and to recognized health care standards” as required by section 409.9131(2)(d), Florida Statutes.

Source:

Radhakrishna K. Rao et al. v. AHCA, DOAH Case No. 12-2813RU (Final Order Aug. 20, 2013).

About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative Law Section of The Florida Bar.