THE POWER OF THE BUREAU FOR PROFESSIONAL MEDICAL CONDUCT WAS SUCCESSFULLY CHALLENGED IN A RECENTLY REPORTED CASE AND THE DECISION DESERVES MENTION. THE PHYSICIAN WAS CHARGED WITH ELEVEN ALLEGATIONS OF MISCONDUCT WITH REGARD TO CARE OF SOME FOUR SEPARATE PATIENTS AND BY A NOTICE DATED DECEMBER 22, WAS INFORMED OF A HEARING TO BE HELD ON JANUARY 25TH. SOME SIX DAYS PRIOR TO THE SCHEDULED DATE THE NEW ATTORNEY FOR THE PHYSICIAN REQUESTED A BRIEF ADJOURNMENT TO BECOME FULLY BRIEFED ON THE MATTER – AND – THE REQUEST WAS DENIED.
ONE ADVANTAGE TO JUDICIAL DETERMINATIONS WOULD BE THAT PARTIES COULD RELY UPON PRECEDENTS IN STRUCTURING THEIR BUSINESS RELATIONSHIPS. HOWEVER – NOW AND THEN COURTS IN DIFFERING JURISDICTIONS REACH CONCLUSIONS ALTHOUGH BASED UPON THE SAME SET OF FACTS. FOLLOWING IS A PRIME EXAMPLE OF DIVERGENT FINDINGS. WE HAD TOUCHED UPON THE FOLLOWING MATTER SOME SEEKS AGO BUT IT DESERVES SOME FURTHER THOUGHTS.
WELCOME TO THE WORLD OF “ACCOUNT STATED-” AN ACTION AT LAW WHICH DATES TO MEDIEVAL DAYS AND IS STILL ALIVE AND FLOURISHING IN TODAY’S EVERYDAY WORLD OF COMMENCE AND LITIGATION.
AS WE KNOW, THE UNITED STATES SUPREME COURT RECENTLY VOIDED NEW YORK’S COVID DENSITY RESTRICTIONS AT PLACES OF RELIGIOUS WORSHIP. WITH THIS BACKDROP A REVIEW OF A CASE BROUGHT IN OUR STATE COURT IS WORTHY OF DISCUSSION.
THE EXTENT AND AUTHORITY OF THE PUBLIC HEALTH COUNCIL WAS THE SUBJECT OF A RECENT DECISION RENDERED IN THE APPELLATE DIVISION FIRST DEPARTMENT AND SHOULD BE OF INTEREST AS AN OVERALL REVIEW OF THE COUNCIL’S POWER, (OR LACK THEREOF).
NEW YORK’S HIGHEST COURT HAS AFFIRMED THE CONVICTION OF A PHYSICIAN WHO WAS TRIED ON A CHARGE OF SECOND-DEGREE MANSLAUGHTER IN THE TREATMENT OF A PATIENT. YOU MAY RECALL THAT SOME YEARS AGO A BROOKLYN PHYSICIAN WAS SIMILARLY CHARGED BUT THE INDICTMENT WAS DISMISSED. THIS LATEST CASE DESERVES A THOROUGH EXAMINATION OF THE FACTS AND CERTAINLY SOUNDS A WARNING BELL FOR CARELESS, OR WORSE, PRACTITIONERS.
NEW YORK WAS THE PIONEER IN CREATING GOOD SAMARITAN LEGISLATION TO PROTECT PHYSICIANS FROM SUIT WHEN THE PHYSICIAN ACTED IN GOOD FAITH IN AN EMERGENCY SITUATION IN A LOCATION REMOVED FROM ACCESS TO MEDICAL EQUIPMENT.
I B N R = “INCURRED BUT NOT REPORTED” THESE INITIALS AND/OR WORDS KEEP INSURANCE ACTUARIES AWAKE AT NIGHT. THE INCIDENTS OF “IBNR’S” PREVENT CARRIERS FROM KNOWING THEIR EXPOSURE TO THE UNIVERSE OF EXISTING CLAIMS AT ANY ONE FROZEN MOMENT. THE CARRIER KNOWS THAT AN ACCIDENT HAS OCCURRED WHICH WILL RESULT IN A CLAIM – BUT – NO CLAIM HAS YET TO BE RECEIVED. THE AMOUNT OF EXPOSURE EXISTS IN A VACUUM. ANY CLAIM WHICH IS RECEIVED BY AN INSURANCE COMPANY RESULTS IN A RESERVE BEING ESTABLISHED ON THE BOOKS OF THE CARRIER TO COVER THE POTENTIAL PAYOUT. THE IBNR, HOWEVER, CANNOT RESULT IN A RESERVE BUT CLOUDS THE PICTURE OF WHAT MAY AND MAY NOT OCCUR DOWN THE ROAD.
WE THOUGHT A REPORT OF THE NEW YORK STATE BAR ASSOCIATION’S HEALTH LAW SECTION SHOULD BE BROUGHT TO YOUR ATTENTION AS IT WILL, NO DOUBT, BE ADDRESSED IN A MORE PUBLIC FORUM AND ULTIMATELY BE UTILIZED IN FORMING NEW POLICIES FOR EMERGENCY SITUATIONS IN THE FUTURE. THE REPORT URGES THAT A MASS VACCINATION PLAN IS NEEDED TO BE IN PLACE WHEN A VACCINE IS FOUND TO COMBAT THE VIRUS. (A 1905 SUPREME COURT CASE HAD VALIDATED A STATE’S AUTHORITY TO MANDATE VACCINATIONS). THE HEALTH LAW COMMITTEE STRESSES THAT ESSENTIAL HEALTH LAW WORKERS AT THE HIGHEST INFECTION RISK MUST HAVE PRIORITY IN RECEIVING THE VACCINES WHEN AVAILABLE.
THE FOLLOWING CASE PROBABLY FALLS UNDER THE CATEGORY OF “GOOD TRY – BUT.” HERE ARE THE FACTS AND CIRCUMSTANCES IN A RATHER INTERESTING SCENARIO.
THE SUBJECT PRACTICE WAS AN OUT OF NETWORK GROUP FOR THE EMPIRE PLAN – THE PRINCIPAL OPTION FOR NYSHIP (NEW YORK STATE HEALTH INSURANCE PROGRAM). OF COURSE, ONE WHO SELECTS AN OUT OF NETWORK PHYSICIAN ANTICIPATES PAYING A GREATER OUT OF POCKET CHARGE AND IT IS THE RESPONSIBILITY OF THE PRACTICE TO COLLECT COPAYS. ONE WHO DOES NOT CHARGE AND COLLECT IS DEEMED TO HAVE INFLATED THE INVOICE CHARGED TO THE CARRIER AND EXPOSES THE PRACTICE TO A CLAIM OF INSURANCE FRAUD.
THE FOLLOWING CASE PROBABLY FALLS UNDER THE CATEGORY OF “GOOD TRY – BUT.” HERE ARE THE FACTS AND CIRCUMSTANCES IN A RATHER INTERESTING SCENARIO.
THE SUBJECT PRACTICE WAS AN OUT OF NETWORK GROUP FOR THE EMPIRE PLAN – THE PRINCIPAL OPTION FOR NYSHIP (NEW YORK STATE HEALTH INSURANCE PROGRAM). OF COURSE, ONE WHO SELECTS AN OUT OF NETWORK PHYSICIAN ANTICIPATES PAYING A GREATER OUT OF POCKET CHARGE AND IT IS THE RESPONSIBILITY OF THE PRACTICE TO COLLECT COPAYS. ONE WHO DOES NOT CHARGE AND COLLECT IS DEEMED TO HAVE INFLATED THE INVOICE CHARGED TO THE CARRIER AND EXPOSES THE PRACTICE TO A CLAIM OF INSURANCE FRAUD.
THE ISSUE CONCERNING THE RIGHTS OF CHILDREN TO PARTICIPATE IN HEALTH CARE DECISIONS ABOUT THEIR WELL BEING HAS BEEN A TOPIC OF INTEREST TO UN COMMITTEES AND WOULD GIVE WEIGHT TO THE OPINIONS OF MINORS IN THESE MATTERS. THE SAME IS TRUE IN OFFICIAL OPINIONS ISSUED BY THE AMERICAN ACADEMY OF PEDIATRICS WHICH, IN ADDITION TO DISCUSSING ASSENT OPINED THAT A PATIENT SHOULD PARTICIPATE IN DECISION-MAKING “COMMENSURATE WITH THEIR DEVELOPMENT.” IF IT IS CONSIDERED THAT INTERVENTION IS NON-ESSENTIAL THE OPINION OF THE PEDIATRIC PATIENT SHOULD BE AFFORDED CONSIDERABLE WEIGHT.
MANY PHYSICIANS WE HAVE SUCCESSFULLY DEFENDED IN OPMC PROCEEDINGS HAVE EXPRESSED THE DESIRE TO SUE THOSE WHO HAVE REGISTERED THE INITIAL COMPLAINT. A RECENT CASE HAS JUSTIFIED OUR ADVICE THAT SUCH ACTION WOULD BE FUTILE.
WE REALIZE THAT MOST, IF NOT ALL, OF THOSE READING THIS REPORT ARE AWARE OF THE RECENTLY ENACTED LEGISLATION IN NEW YORK CONCERNING UNAUTHORIZED PELVIC EXAMS DURING SURGERY BUT SINCE THE BILL PASSED LESS THAN A YEAR AGO AND BECOMES EFFECTIVE APRIL 4TH OF THIS YEAR IT SEEMED APPROPRIATE TO CAREFULLY RECITE ITS PROVISIONS.
YOU MAY RECALL THAT ABOUT TEN YEARS AGO A GROUP OF INSURERS, (INCLUDING PROGRESSIVE), BROUGHT A SERIES OF LAWSUITS CHALLENGING PHYSICIANS’ CHARGES ON THE GROUNDS THAT THE PROFESSIONAL CORPORATIONS, DESPITE CORPORATE FILINGS, WERE NOT TRULY OWNED BY LICENSED PHYSICIANS. OLD HABITS SEEMINGLY DO NOT VANISH AS WE REVIEW A CASE RECENTLY RULED UPON BY NEW YORK’S HIGHEST COURT.
THERE ARE MANY BASIC ELEMENTS IN ANY EMPLOYMENT CONTRACT PERTAINING TO PHYSICIANS. THE OBVIOUS ARE COMPENSATION; PERIOD OF EMPLOYMENT; HOURS ETC. WE WILL EXAMINE THE NUANCES WITHIN THE AGREEMENT WHICH COULD CAUSE CONCERNS UPON THE TERMINATION OF THE CONTRACT PERIOD.
ONE WOULD NORMALLY ASSUME THAT THERE WAS LITTLE, OR NO, CORRELATION BETWEEN THE ISSUES OF LOSS OR SUSPENSION OF A MEDICAL LICENSE AND THE PROVISIONS OF THE DOMESTIC RELATIONS LAW BUT THERE ARE NO LIMITS TO THE INGENUITY OF OUR LAWMAKERS. THERE IS A LITTLE KNOWN SECTION OF THE DOMESTIC RELATIONS LAW (DLR) WHICH CAN HAVE SIGNIFICANT IMPACT UPON THE LICENSE OF A PHYSICIAN – OR – ANY PERSON WHO IS LICENSED BY THE STATE TO CONDUCT ONE’S PROFESSION. THIS PORTION OF THE LAW EXTENDS TO A LOCALITY WHICH HAS THE POWER TO AUTHORIZE THE CONDUCT OF A BUSINESS.
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 ARE AWARE THAT THIS MAY BE REPETITIOUS AND FOR THAT WE APOLOGIZE – BUT – WE HAVE RECEIVED MANY CALLS FROM PHYSICIANS PLAGUED WITH OPMC ISSUES AND KNOW FROM THESE EXPERIENCES THAT A REPEAT IS NEEDED OF EARLIER CAUTIONS.
THE THRUST OF THIS REPORT S TO DISCUSS EMPLOYMENT CONTRACTS YOU MAY HAVE ENTERED IN TO WITH STAFF MEMBERS AND THEIR RELATIONSHIP TO MALPRACTICE ISSUES. THE STANDARD ARRANGEMENTS CONCERNING COMPENSATION, WORK ASSIGNMENTS, VACATIONS AND THE LIKE ARE EASILY HANDLED. QUESTIONS ABOUT MALPRACTICE INSURANCE AND, MORE IMPORTANTLY, INSURANCE RESPONSIBILITIES FOLLOWING END OF EMPLOYMENT ARE NOT SO SIMPLY HANDLED.
A RECENT DECISION CONCERNING THE AWARDING OF HOSPITAL PRIVILEGES IS WORTHY OF REPORTING AND YOUR REVIEW. FACTUAL BACKGROUND – A NEUROSURGEON APPLIED FOR PRIVILEGES AND MEDICAL STAFF MEMBERSHIP AND THE SAME WERE DENIED BY THE INSTITUTION WHICH HAD RECEIVED TWO NEGATIVE REPORTS ABOUT THE PHYSICIAN FROM ANOTHER HOSPITAL WHICH RELATED TO ALLEGED POOR INTERPERSONAL SKILLS AND PROBLEMS DEALING WITH HIS/HER SUBORDINATES. UPON THE DENIAL THE PHYSICIAN APPEALED TO THE NEW YORK PUBLIC AND HEALTH PLANNING COUNCIL.
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.
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.
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.
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.
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.
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.
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. …
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. …
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. …
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. …
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. …
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! …
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…
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.
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.
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?
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.
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!).
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.
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.
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.
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.
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.
