Tag Archives: health attorney

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.

Healthcare Providers Service Organization (HPSO) Attorneys, Lawyers and Defense Council in Florida

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Often we learn after the fact that a health professional such as a mental health counselor, psychologist, or pharmacist has received Healthcare Providers Service Organization (HPSO) insurance, has had a legal problem, and has not been able to locate an attorney or law firm that accepts this type of insurance. We have offices in Florida and Colorado, but we have attorneys licensed in Florida, Colorado, Louisiana, the District of Columbia, Virginia and other states.

Additionally, we can provide legal advice and representation in license investigations and administrative proceedings in many other states.

If you have HPSO Insurance, do not go without an attorney or with a lawyer that has little or no experience where you need it. Contact us, and we will help you.

Don’t Worry About Legal Bills While Your Case is Going On.

Call us first. We can assist you in determining if your legal problem is covered by your insurance, and we can help you file a claim to have your legal defense expenses and costs covered. In most cases, we will accept the assignment of your insurance so that you do not have to worry about legal bills while your case is going on.

Contact Experienced Health Law Attorneys That Will Work with Insurance Companies.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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. 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, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

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. 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 © 1996-2012 The Health Law Firm. All rights reserved.

The Doctors Company (TDC) Attorneys, Lawyers and Defense Council in Florida

Indest

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

Often we learn after the fact that a health professional such as physicians, dentist and other health professionals has received The Doctors Company (TDC) Insurance, has had a legal problem, and has not been able to locate an attorney or law firm that accepts this type of insurance. We have offices in Florida and Colorado, but we have attorneys licensed in Florida, Colorado, Louisiana, the District of Columbia, Virginia and other states.

Additionally, we can provide legal advice and representation in license investigations and administrative proceedings in many other states.

If you have TDC Insurance, do not go without an attorney or with a lawyer that has little or no experience where you need it.
The Health Law Firm Will Work with You and Your Insurance Company.

Call us first. We can assist you in determining if your legal problem is covered by your insurance, and we can help you file a claim to have your legal defense expenses and costs covered. In most cases, we will accept the assignment of your insurance so that you do not have to worry about legal bills while your case is going on.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses, dentists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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. 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, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

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. 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 © 1996-2012 The Health Law Firm. All rights reserved.

Poll Shows Majority Supports the Legalization of Marijuana

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

For the first time in four decades, a majority of Americans support the legalization of marijuana, according to a national survey conducted by Pew Research. The results from the survey, released on April 4, 2013, show fifty-two percent (52%) of adult Americans back making marijuana legal.

To read all of the poll results from Pew Research, click here.

The Pew Research polled 1,501 American adults from March 13 to 17, 2013, for this survey.

Demographics on Adults Who Support Legal Marijuana.

According to the survey results, forty-eight percent (48%) of poll respondents said they have used marijuana at some point in their life. Younger Americans are more likely to support legalization than their elders. However, the poll does show legalization gaining support among all generations. According to the survey, fifty percent (50%) of baby boomers support legalized marijuana.

Two Big Shifts in Opinion to Support Legalizing Marijuana.

According to an article in the Los Angeles Times, there are two big opinion shifts Americans have gone through that have swayed their way of thinking. The first thought is most Americans no longer see marijuana as a gateway drug, and the second is most adults no longer see the use of marijuana as immoral.

In fact, according to the survey results, most respondents feel the federal government’s efforts to criminalize marijuana “cost more than they are worth.”

Government’s Stance on Marijuana.

Currently, 24 states and the District of Columbia either have decriminalized personal use of medical marijuana, legalized it or allowed it to be used for medical purposes. These state laws clash with federal law that treats marijuana as a dangerous drug with no legitimate medical uses, according to the Los Angeles Times.

Click here to read the article from the Los Angeles Times.

Florida’s Fight for Medical Marijuana.

According to an article in the Orlando Sentinel, Florida attorney John Morgan of Morgan & Morgan recently jumped behind an effort to legalized medical marijuana in Florida. Morgan’s reputation throughout the community and his personal story on why he is lobbying for medical marijuana has people listening.

Morgan’s father suffered from emphysema and cancer, according to the Orlando Sentinel. His appetite was suppressed apparently due to the medicine he was on near the end of his life, and medical marijuana gave him some relief. Morgan said he was motivated to join this cause when he saw a poll that stated seven out of ten Floridians would support a constitutional amendment to support legalized medical marijuana. According to the Orlando Sentinel, Morgan has seen the benefits of medical marijuana firsthand.

Click here to read the entire Orlando Sentinel article.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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

Comments?

Do you think marijuana should be legalized? Do you think Florida will legalize medical marijuana? Please leave any thoughtful comments below.

|Sources:

“Majority Now Supports Legalizing Marijuana.” Pew Research. (April 4, 2013). From: http://www.people-press.org/2013/04/04/majority-now-supports-legalizing-marijuana/#comfort-level

Kassab, Beth. “John Morgan Could Take Medical Marijuana Mainstream.” Orlando Sentinel. (March 18, 2013). From: http://www.orlandosentinel.com/news/politics/os-beth-kassab-medical-marijuana-20130318,0,2558234.column

Lauter, David. “Marijuana Legalization Wins Majority Support in Poll.” Los Angeles Times. (April 4, 2013). From: http://www.latimes.com/news/politics/la-pn-marijuana-legalization-majority-support-20130404,0,2533952.story

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 © 1996-2012 The Health Law Firm. All rights reserved.

Are You Working at an Illegal Health Care Clinic?

Despite the passage of Florida’s Health Care Clinic Act over nine years ago, there are apparently still many health practices which are violating it. Unfortunately, the violation of the Health Care Clinic Act can have extremely serious repercussions, including conviction of a felony, loss of all fees collected, and disciplinary/licensure action against any physicians, nurses or other licensed health professionals working there.

Over the past three years we have seen the following scenarios or ones similar to these (changed factually to ensure anonymity):

Scenario 1: A physician licensed in Florida decides to sell her practice and retire. Three non-licensed business people decide to form a corporation to purchase and operate the practice. The corporation purchases the medical practice’s assets, including patient records. The corporation has not applied for or received a Health Care Clinic License.

Results: On the day of closing or the day the practice is transferred to the new corporation, the corporation is operating illegally, in violation of Florida law. Each day of operation is a separate felony.

Scenario 2: A physician practices medicine through a limited liability company (LLC) which the physician owns with his non-licensed wife. The physician dies and his wife remains sole owner of the practice, hiring a locum tenens physician to come in and treat patients.

Results: As of the date of death of the physician, the practice is operating illegally, in violation of Florida law. Each day of operations is a separate felony offense.

Scenario 3: A physician licensed in Florida operates a medical practice as a sole proprietorship. The physician desires to reward her practice manager, a non-licensed business person, by making him a partner in her practice. The practice continues to operate as before without a health care clinic license.

Results: The practice is operating illegally as of the day the practice manager is made a partner.

Scenario 4: Osteopathic physician (D.O.) has a medical practice which he owns and operates through a business corporation which does not need or have a health care clinic license. He decides to relocate to another state. He sells the shares of stock to a medical doctor who is licensed in Georgia, but is not licensed in Florida. The new physician owner hires a medical doctor licensed in Florida to deliver all medical services in the Florida practice.

Results: The corporation, its owner, and the physician employee are operating illegally as of the date the shares in the corporation are transferred. Each day of operation constitutes a new offense.

The consequences of such actions are severe. The act provides that violating it constitutes a felony of the third degree for each day of operation. Any physician or licensed health professional having knowledge of the unlicensed status of the practice or clinic and who does not immediately report it can be disciplined by his or her professional board. Any fees of any kind collected from any source, Medicare, Medicaid, insurers, or cash from patients, are considered illegal as a matter of law and are subject to recoupment or refund.

If you are a licensed physician, nurse, physician’s assistant or other health professional, be sure you know who the actual owners of the medical practice are. If any are not licensed in Florida, inquire as to the existence of a current, valid health care clinic license from the Agency for Health Care Administration. If any doubt or suspicion, consult with an experienced health care attorney.

Please visit our website for more information at http://www.TheHealthLawFirm.com. 

At Last, a Ray of Hope for Florida Health Professionals Who Have Paid Their Debt to Society After Criminal Conviction

The Florida Legislature unanimously passed HB 653 which relaxes some of the draconian exclusions enacted under SB 1986, which went into effect on July 1, 2009. SB 1986, which added provisions to Chapter 456, Florida Statutes, among others, prevented numerous healthcare providers from obtaining or renewing licenses based on prior criminal convictions, which could have occurred decades earlier.

As of this writing (March 16, 2012), HB 653 has been passed unanimously by the Florida Legislature, but awaits the Governor’s signature.

Under HB 653, the professional boards within the Department of Health (such as the Board of Medicine, Board of Nursing, Board of Psychology, Board of Massage Therapy, etc.) now will, if signed by the Governor, only prohibit the renewal or granting of a health professional’s license, certificate or registration, if the individual:

1. Has been convicted of, or entered a plea of guilty or no contest to, regardless of adjudication, a felony under Chapters 409 (Medicaid offenses), 817 (theft or fraud) or 893 (drug offenses), Florida Statutes, or similar laws in other jurisdictions, unless the individual successfully completed a drug court program for the felony and provides proof that the plea was withdrawn or the charges were dismissed, or unless the sentence and any related period of probation for such conviction or plea ended:

- For first and second degree felonies, more than fifteen (15) years before the date of application;

- For third degree felonies, more than ten (10) years before the date of application, except for third degree felonies under Section 893.13(6)(a), Florida Statutes; and

- For third degree felonies under Section 893.13(6)(a), Florida Statutes, more than five (5) years before the date of application.

2. Has been convicted of, or entered a plea of guilty or no contest to, regardless of adjudication, a felony under 21 U.S.C. Sections 801-970 or 42 U.S.C. Sections 1395-1396 (federal Medicare & Medicaid offenses), unless the sentence and any subsequent period of probation for such convictions or plea ended more than fifteen (15) years before the date of application; or

3. Is listed on the OIG’s list of excluded individuals and entities.

This new legislation has the effect of reducing the period of time a health professional may be prohibited from holding a license because of a conviction for one of the enumerated felonies. Under the current law, there is a fifteen (15) year prohibition for all enumerated offenses. The new legislation, if signed, will reduce the period to as little as five (5) years for drug offenses.

However, it also broadens the reach of the current Florida law by including, for the first time, convictions under “similar laws in other jurisdictions.” This may now “catch” many to whom the Florida law did not previously apply.

HB 653 also allows individuals previously denied renewals under SB 1986 who at are now eligible for renewal to obtain a license without retaking and passing their examinations.

The latter requirement above, number 3, may present a “catch 22″ for many health professionals. Usually, if a licensed health professional is convicted of a felony, loses his/her license or is denied renewal of a health professional’s license, this is reported to the National Practitioner Data Bank (NPDB). The NPDB now includes reports previously made to the Healthcare Integrity and Protection Data Bank (HIPDB). If this occurs, in most cases the Office of Inspector General (OIG) commences action to exclude the professional from the Medicare Program. This automatically places the health provider’s name on the OIG’s List of Excluded Individuals and Entities (LEIE). Therefore, most licensed health professionals, even if they are no longer prohibited from holding a license under numbers 1 and 2 above, may still be prohibited because of requirement number 3 above.

Doubtless, this lacuna (gap) in this legislation will require additional corrective legislation in the future.

As previously indicated, HB 653 is currently (March 16, 2012) awaiting the Governor’s signature.

Orlando Health Attorney Featured in Latest Issue of Medical Economics

Orlando, Fla. – March 15, 2012 - George F. Indest III, President and Managing Partner of The Health Law Firm, shares his knowledge of health law in the March 14 issue of Medical Economics. Mr. Indest was interviewed and quoted for an article concerning legal advice for primary care physicians who prescribe painkillers. In the article he provided information based on his experience in defending physicians charged with over-prescribing with the DEA and Florida DOH, Board of Medicine.

The article, “5 ways to avoid over-prescribing allegations,” includes tips written by Mr. Indest for physicians to follow if they practice pain management. The article can be read in its entirety here.

Mr. Indest is a well-known attorney specializing in the representation of health professionals and health care providers throughout Florida. His practice encompasses all aspects of health law, including pain management and pain medicine physician and clinic defense, defense of professional licensing cases, representation in investigations, defense in credentialing matters, Medicare and Medicaid audits, formation of corporations and limited liability companies (LLCs), Board of Medicine hearings, peer review actions, clinical privileges hearings, representation of medical students, and other matters of health care law and legal representation of health care professionals.

In 1999, Mr. Indest started The Health Law Firm, which has three Florida offices in Altamonte Springs, Orlando, and Pensacola. A former Navy JAG Corps attorney, he has practiced law for over 30 years.

For more information about The Health Law Firm visit http://www.thehealthlawfirm.com.

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About The Health Law Firm
The Health Law Firm was established in 1999, bringing together a team of experienced attorneys with decades of work in the legal and healthcare fields. With offices in Altamonte Springs, Orlando and Pensacola, Florida, the firm represents healthcare providers, including hospitals, nursing homes, physicians, dentists, mental health professionals and other licensed health professionals and entities. For more information about The Health Law Firm, visit http://www.thehealthlawfirm.com.

For additional information contact:
Kara Large
Office: (407) 331-6620, ext. 219
Cell: (407) 921-4322