THE LIJ MEDICAL STAFF SOCIETY LEGAL PEARLS 2022
LEGAL ISSUES RELEVANT TO THE PRACTICE OF MEDICINE IN NEW YORK.
We wish to report on a lawsuit which carries significance for anyone either selling or buying a practice. While the facts seem clear on the surface the ruling of the court leaves one puzzled and alerts one as to what can occur. The asset being sold was a skilled nursing facility, but the fact pattern could be applied to any type of practice.
You are in your office on a typically busy day and are suddenly informed by a staff person that you have received a subpoena – unfortunately, not an uncommon experience. Let us discuss the particular document and reasons and implications of it.
Our report addressing the matter of subpoenas elicited a number of inquiries and we thought it useful to clarify some of the issues raised.
If you receive a Grand Jury or judicial subpoena in conjunction with a criminal proceeding involving a patient. Please be alert to the fact that although HIPAA rules do permit you to release this information minus your patient’s consent, the law in New York does not grant you the exemption for information release without the consent of your patient. If the subpoena lacks a court order or patient authorization, then to comply with New York Law the information is not to be released. However, New York does permit its oversight agencies to subpoena patient information without patient consent. Thus, were you to receive such a subpoena from OPMC, Departments of Mental Hygiene or Health, you need not be concerned with the question of lack of consent. The same also applies to Medicaid fraud investigations with the caveat that if the information is not related to the investigation, you need not comply. It goes without saying that it is always best to have counsel guide you through the morass.
A recently reported case caught our attention as it dealt with an issue which triggers almost
monthly calls to our office. The issue revolves around the reporting of incidents to the National
Practitioner Data Bank.
These are the facts about the case at hand: A Suffolk County hospital employed the
physician/surgeon who eventually brought suit. Shortly after his employment commenced a fallopian
tube was inadvertently removed from a patient who was undergoing an appendectomy. A meeting ensued between hospital and surgeon and the latter agreed to refrain from surgery pending an investigation.
After a two day interval physician resigned his position and relinquished surgical privileges.
Once again, the question of the vicarious liability of a hospital for injuries suffered
by a patient has been addressed and the hospital emerged unscathed.
The facts- complications arose after surgery and patient was placed on a ventilator and extra-
corporeal membrane system. Unfortunately, the tubing was disconnected during
transport resulting in blood loss coupled with brain injury. The treating physicians were sued together with the hospital where the surgery had been performed- the latter under the theory of vicarious liability which was mentioned earlier. Obviously, plaintiff’s lawyers were targeting as many pockets as could be reached.
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