Legal Pearls

The LIJ Medical Staff Society Legal Pearls 2019


July 17, 2019
A medical practice evidently thought that you cannot have too much of a good thing and believed that a restrictive covenant was a “good thing” – but- in the process overstepped the boundaries of what would be deemed acceptable by a court.

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June 19, 2019
The following report concerning sexual harassment was in the “pipeline” and recent stories and headlines make the topic even more relevant today.
The federal government has used its powers under the Civil Rights Law of 1964 but we will focus primarily on the similar New York statute as the latter applies to ALL employers whereas the federal is limited to those with 15 or more employees. Further, for those practicing in New York City you are confronted with a law which has a broader view of what does or does not constitute harassment.

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May 15, 2019
A recent court decision is of sufficient interest to bring to your attention. The case brings into play the growth of telemedicine and of exposure to a malpractice claim of the practitioner. Defendant physician was a radiologist – a New Jersey resident – professional office only in New Jersey. He allegedly misread a sonogram and thus there was a delay in both the diagnosis and treatment of the patient’s breast cancer condition. The patient/plaintiff in question was a resident of New York and brought suit in the New York courts against the radiologist and others.

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April 17, 2019
A few years ago, New York announced that it was expanding its efforts to pursue alleged violations and abuses of the Medicaid program. There have been a continued series of reports announcing results of its investigations and we thought you would find it interesting to review some of the accounts reported.

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March 20, 2019
The importance of protections both for malpractice prevention programs (New York Public Health Law) and for quality assurance programs (New York Education Law) came into judicial focus in a litigation based on a surgical incident which left the patient with permanent and cognitive impairments.

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January 16, 2019
A recent court decision would seem to answer the riddle as to when a finding of medical malpractice does not result in the person who committed the act to be responsible for it. Surprised? Here are the facts of the case.

A third year orthopedic resident performed surgery on the patient’s femur while under the direct supervision of the patient’s physician. The selection of the angle and location of the drill – as well as the decision to halt the drilling – were performed at the direction of the supervising physician.

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December 19, 2018
New York has not been known – to put it gently – to be physician friendly when it comes to matters involving litigation. It is therefore somewhat surprising that we are the ONLY state which permits a party to withhold the identity of the expert being called to testify in a medical, dental or podiatric malpractice suit.

The rationale given for the identity protection is that the expert in question might be intimidated or discouraged by colleagues from giving testimony.

With the advent of technology and the internet it has become easier to identify who the witness might be as certain information must be provided to the other side such as the name of the schools attended by the expert; residency and internship backgrounds; dates of graduation and board certifications etc etc which could narrow the search for identity if one pursued these avenues of information. ...

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November 28, 2018
There are times when we learn from our mistakes but the following report may help some learn from the mistakes of another practitioner.

The operator of two state authorized clinics was informed by the Medicaid Inspector General that an audit of his facilities uncovered approximately 6 million dollars in overpayments.

The aggrieved party challenged the findings and a final audit report (FAR) reduced the amount quite substantially to1.85 million! This last amount was the result of an extrapolated estimate and the operator was duly informed that it had been reached on a sampling of encounters. By regulation there is a presumption that it is accurate in the absence of contrary evidence. ...

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October 18, 2018
New York Downtown Hospital employed a medical scientist and also a Vice President of Research and Chair of the Institutional Review Board (IRB) of the institution.

The medical scientist (later to be the plaintiff in the litigation) was charged with the responsibility of developing materials for a clinical trial of a compound designed to treat those with metastatic cancer.

New York Downtown terminated both persons claiming that they had violated the hospital’s conflict of interest policy in that they had taken money from the developer of the compound. The terminated employees, in turn, filed a complaint with the FDA contending that the patients being treated might not receive adequate supervision from the institution. ...
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September 23, 2018
We know we have written before about the unpleasant topic of what you should do if you receive a letter from the Office of Professional Medical Conduct. We do believe that this is so important a topic that it bears repetition. The following will not be the normal type of discussion you might anticipate from an attorney but it is rather a conversational piece to talk about a topic most would prefer not to contemplate.
Back to the letter – DO NOT – and we emphasize DO NOT contact the OPMC person who has written the letter to you. Do not become involved in a discussion with OPMC – that office was not created to necessarily protect the rights of physicians but rather to investigate complaints brought against a practitioner – or to question certain aspects of a practice. Let’s look at it this way – if you received a summons in a malpractice suit you would immediately contact your carrier. ...
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July 15, 2018
A recent court decision has received a great deal of attention in legal circles and we thought it would be of interest to you. It centers about the powers of the New York State Comptroller and we think you would agree with us that it is quite rare to think of the Comptroller and healthcare in the same sentence. In essence, United Healthcare pays the claims submitted by physicians for services provided to state employees under the Empire Plan. The Plan is the primary for the State’s health insurance program. The obligations of United are to process and pay the claims. ...
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June 24, 2018
The following report concerning sexual harassment was in the "pipeline" and recent stories and headlines make the topic even more relevant today...
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May 20, 2018
The continuous doctrine issue continues to be a hot button for the legal community and the fact patterns in the cases are sufficient to cause raised eyebrows in shock! ...
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April 22, 2018
We would take this opportunity to report on two recent court decisions which are of unique interest in analyzing the legislative meaning of statutes applying to the profession...
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March 18, 2018
A recent court decision in the Appellate Division governing Queens/Long Island should be of interest to participating physicians with Health Plans...
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January 21, 2018
New York State has gone to great efforts to ease the transition of patients from one health insurer to another ...
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The LIJ Medical Staff Society Legal Pearls 2017



December 17, 2017
Your office receives an overpayment for a service rendered to a Medicare or Medicaid patient. Perhaps this was simply an error on the part of the paying entity or perhaps it was the result of an improper submission on your part. Whatever the reason you are now in the thicket of what may constitute a False Claim Act violation and the consequences flowing from that event or events.
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November 19, 2017
The continuous treatment doctrine —yes — continues to find its way into an untold number of court decisions. The latest case of interest was reported this last month and deserves review.
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October 22, 2017
You receive a subpoena for the medical records of one of your patients. You are familiar, of course, with the HIPAA protections for privileged health information (PH) but you are confronted with a legal document and, the question then is, what to do?
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September 17, 2017
Physicians must be alert to respond correctly to the many questions asked, not only on applications pertaining to staffing privileges, but, of equal or more importance, those questions asked on relicensing documents required by the state.
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July 23, 2017
New York was a pioneer in Good Samaritan legislation protecting the rights of physicians (Yes — there was a time when our Legislature was concerned in shielding physicians from unnecessary litigation!).
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June 11, 2017
Whether you are signing your first employment contract or you have been down this road before there are certain issues which we believe should be brought to your attention.
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May 21, 2017
In the ever growing world of audit, compliance and attempts at recovery by payors the use of statistical sampling and extrapolating is faced by physicians and their representatives as a form of business as usual. That having been said let us examine the mechanics of the process together with its purposes and whether the practitioner can anticipate a fair and reasonable outcome.
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April 30, 2017
Our earlier report concerning Health Care Proxies and their usage triggered a flurry of questions and we thought that the following would be useful information for the practitioner. The holder of a health care proxy has only been given the authority to make health care decisions. In the absence of a separate power given to the donee the health care agent lacks the authority to control visitations of persons to the patient and lacks the power to determine whether the patient can or cannot execute legal documents and the like. The power has been given to make health care decisions -period. Other matters may or may not have been given to others but they fall outside the powers of the health care designee.
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March 19, 2017
Let us discuss the unpleasant topic of what you should do if you receive a letter from the Office of Professional Medical Conduct. The following will not be the normal type of discussion you might anticipate from an attorney, but it is rather a conversational piece to talk about a topic most would prefer not to contemplate.
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February 26, 2017
We thought it would be useful for the practicing physician to be fully informed concerning the usage of health care proxies and their interaction in the normal course of the professional day.
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January 22, 2017
Our state has a comparatively new statute concerning so-called "surprise bills" and medical care which should be carefully understood by physicians.
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