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.
