THE LIJ MEDICAL STAFF SOCIETY LEGAL PEARLS 2024
LEGAL ISSUES RELEVANT TO THE PRACTICE OF MEDICINE IN NEW YORK.
It is a safe assumption that in most cases involving negligence issues the defendant would
prefer to have the case tried in a federal court, if possible, while for the plaintiff the corollary is true. The basic reason- money verdicts are more conservative in jury trials. The drawback for the defendant is that the cases seem to be tried more quickly on the federal trial calendar.
Entry to the federal system is not available to all litigants as certain basic hurdles must be overcome to gain access to this venue. With this preamble we discuss a recent case wherein a hospital found itself a defendant in Kings County, a venue noted for its juries being generous to plaintiffs. The plaintiff had been hospitalized and alleged negligent care resulting in bed sores.
We are in the opening weeks of the New York Legislative session and it is an opportunity to forecast the issues which will affect the medical profession.
The interplay between medical service organizations and the practicing professional will, no doubt, be of interest to those governing the licensing process.
In the last two sessions we witnessed an attempt by the trial bar to expand the rights of others to claim pain and suffering and the like in cases involving alleged malpractice. The Executive branch vetoed such bills but it is quite clear the attempt has not vanished.
We have written before concerning the activities of physicians when being contacted by the
Office of Professional Medical Discipline (OPMC) but predicated by the numbers of calls we receive from individuals it seems appropriate to discuss the subject again.
The obvious- OPMC is not a friend or a colleague. You are either the prospective or actual
target of an investigation. It is best- it is imperative- that you not engage in a conversation of any length with the initial contact person. We have experienced too many physicians who have believed they could solve by seeking the understanding of the initial contact person. Best not to seek to explain prior to meeting with your counsel. You need the advice of someone who can view the matter with an experienced eye. There will be opportunities in the future to present and explain.
It should not come as a surprise that last year’s Supreme Court ruling on abortion rights
would quickly echo in the federal court system. A matter brought in the Northern District Federal Court is an example of this “echoing” effect.
Plaintiffs had, prior to the high court ruling, brought suit against the Governor and others contending that the New York Reproductive Health Act and certain other New York statutes concerning the definition of “person” as one who had been born, deprived women of certain protections and limited their rights to sue for damages. The case had originally been dismissed by the Court for a variety of reasons.
A recent event experienced by a client leads us to ask the following question- Have you reviewed whether or not you maintain professional corporations or similar entities which you have not utilized for many years? If the answer is in the affirmative, the next question is- why have you not dissolved them?
We suggest you discuss with your accountant the reason, if any, for keeping them alive.
The issue was recently presented to our office, – may an “in-network,” (INN), physician establish a new and separate practice in order to bill a carrier as an “out-of-network,” (ONN), entity?
A physician presented the fact-pattern in which they were seeking to open a new Practice, under a new Tax ID number, an unrelated service location, offering similar along with additional services from the enrolled/participating practice.
THE LIJ MEDICAL STAFF SOCIETY LEGAL PEARLS 2023
LEGAL ISSUES RELEVANT TO THE PRACTICE OF MEDICINE IN NEW YORK.
The issue of a physician’s sexual relationship with a patient is always challenging and an opinion of New York’s highest court on the question should be of interest.
The defendant in this case was a family practice physician and the
plaintiff patient was receiving treatment for depression and anxiety while undergoing marital problems. A consensual sexual relationship ensued and plaintiff was ultimately divorced. Patient then sued physician alleging medical malpractice relating to their affair.
United Health, as a plan administrator of many ERISA governed benefit plans refused to pay a facility fee to out-of-network physicians performing surgery at their own medical offices contending that none of their plans stated that a physician’s
office qualified as a “facility,” which would have entitled them to receive a separate facility fee.
This determination was challenged by MSSNY and the Society which represented office-based surgical facilities. A five-day trial ensued in the federal court and resulted in a victory for the carrier.
We offer the following fact pattern for your consideration in a pending litigation which has not yet been decided by the court.
McKesson offered oncology practices which guaranteed to purchase a specific quantity of drugs from McKesson the free usage of two management tools developed by McKesson. One program compared reimbursement rates for interchangeable drugs and the other calculated the profit margins for the prospective course of treatment.
The New York Legislature is nearing what will probably be the half-way mark of its Session for this year and we thought it appropriate to discuss the impact a Legislature has and the best way to attempt to affect its outcomes.
It is interesting to note that in the past fifty years every Democrat who was named Speaker of the Assembly, came from New York City- an acknowledgement that the greatest majority of Democrat Assembly members come from this area.
As one constantly reads and researches the numerous reports of cases and Departmental rulings pertaining to medicine one must remain alert to the activities of
the New York Attorney General and her actions concerning the many commercial players interacting with health care.
Example- Verizon Wireless has many cooling towers located in New York State
and there was a determination reached by the Attorney General (AG) that the towers could cause the spread of Legionnaires’ disease based upon the water droplets emanating from the towers which might contain the Legionella bacteria.
It has taken quite a while to occur but New York State has announced an active
Interest in the relationship between medical practices and medical service
organizations (MSOs). The Executive budget would charge the Health Department with oversight responsibilities over the transactions between the interested parties in these occurrences.
What does this mean? Prior to the commencement of the business arrangement
between the parties Health Department would be charged with the creation of a process somewhat akin to the Certificate of Need (CON) procedures which are part of an Article 28 application.
A consent of Health would be required and Health would be expected to examine the character and competence of the parties as well as the funding source of the proposed entity. There would be a weighing of the relationship between both positive and negative effects upon health equity and outcomes were the relationship to be approved.
Pfizer attempted to create an interesting program for its Medicare beneficiaries
as it related to the drug tafamidis produced by Pfizer. Under normal circumstances, the co-pay by a person using the drug and having Medicare Part D coverage would be $13,000 annually.
Pfizer determined that a party who had no other co-pay Medicare assistance
would be confronted with financial difficulties and thus Pfizer authored a plan whereby a Direct Copay Assistance Program would be established with a patient paying $35 month out-of-pocket to receive the drug with Pfizer absorbing the balance. Pfizer would agree not to use its program to solicit new patients.
The continued growth and usage of Medical Service Organizations (MSOs), has finally caught the eye of government and there is little doubt that many MSO arrangements between commercial entities and practicing physicians will be the subject of inquiry.
New York State has always acted to assure that one’s medical practice was operated and controlled by the party holding the professional license. The unlicensed was barred from entering into the equation and was barred from sharing in the professional fees earned by the licensee. We do acknowledge that many billing companies charge a percentage of what is billed and collected but we have always cautioned our professional clients that this type of agreement could result in professional discipline issues against the licensee.
We thought you might be interested in learning the historical background of the Good
Samaritan Law which was designed to shield a physician from liability when treating a patient in an emergent situation while removed from any health care situs. The patient in need of care can receive it and the physician need not be concerned with a claim of negligence for the care they render without thought of being paid.
The New York statute was enacted in 1964 and was criticized by the trial bar and was the focus of critical law review articles.
November 2023
We were at a meeting at New York Hospital some years ago and one of the physician participants mentioned that he had heard the phrase “health care provider” being used to describe a cardiologist colleague. The use of the appellation troubled him as it seemed, to him, to be somewhat demeaning. This particular physician often complimented us by saying our advice was prescient. It was in this insight, however, where he was being prescient indeed.
A lively discussion followed as we were then dissecting and being critical of the “Clinton Health Plan” and its ramifications. It was our opinion that the “provider” language benefited from an outgrowth of the general Ralph Nader consumerism movement which tended to neutralize the impact of professionals and of the importance of professionals themselves.
We wish to report on an interesting case involving the provisions of the Public Health Law as it relates to alleged improper acts of a hospital accused of improper practices in denying , withholding or terminating the privileges of a physician.
The facts: Prior to his graduation from medical school the physician learned of his acceptance to the pediatric residency program at New York Presbyterian Brooklyn Methodist Hospital via the NRMP. The match agreement binds both parties, by its terms, and only the NRMP can waive the match obligation.