CONTACT INFORMATION Michael T. Goldstein, M.D., J.D. 115 East 61 st St. Suite 3A New York, N.Y. 10065 212-371-6209 Email: firstname.lastname@example.org
DISCLAIMER This lecture is for educational purpose only It should not be considered legal advice No attorney client relationship is entered into as a result of this lecture If you require specific legal advice contact your attorney
State Licensing Agencies Are responsible for the regulation and discipline of physicians
LEGAL PRINCIPALS Criminal Law Civil Law Administrative Law All have different standards and rules
ADMINISTRATIVE LAW Administrative Law is considered Civil not Criminal However some of the penalties are Penal (quasi criminal) Loss of license, fines, suspensions Everyone but the defense is on the same team
INVESTIGATION There are approximately 7000 investigations per year initiated by the filing of a complaint in New York and California Source of Complaint Percentage (New York) Government 15% Insurers 9% Other 4% Out of State 12% Physicians 2% Public 58%
INVESTIGATION Each complaint is assigned an investigator Investigator works with MD to evaluate complaint Physicians are then contacted Sometimes only an explanation is required Physicians can be called into an interview Process varies by state
FILING OF CHARGES Approximately 350 or 5% of the investigations result in the filing of charges (similar for California and New York) Of those charged 95%- 97% are convicted of at least one charge Goal is be in the 95% who are not charged Strategy is to seek competent legal advice to guide you through the system
OUTCOMES Revocation Suspension Stayed Suspension Public Letter of Reprimand Administrative Warning
CONSEQUENCES Removal from hospital staffs Delisting by insurance companies Malpractice Surcharge Malpractice Cancellation
SURVIVAL STRATEGY Realize that once you are the subject of investigation you must enter defensive mode Investigators like low hanging fruit Do not talk to any investigative agency without advice of counsel Do not send any documents to an investigative agency without advice of counsel
SURVIVAL STRATEGY You must appear cooperative but do not supply documents that you are not required to supply. The more documents the greater the opportunity to find something You must hire a lawyer who has expertise in physician discipline in your state You must hire a lawyer who has a relationship with the agency
SURVIVAL STRATEGY It is important that your lawyer knows how the system works and has a relationship with the agency Think of an investigation as a snowball rolling down a mountain the longer goes on the bigger it gets and the harder it is to stop it If possible you want to convince the investigator to move on to another doctor
SURVIVAL STRATEGY Avoid hearings if possible Never say anything to an investigator which confirms guilt or opens the door to a larger investigation If you are being investigated for the care you rendered to three patients don’t volunteer that you have treated one hundred other patients in a similar manner
SURVIVAL STRATEGY Never lie to an investigator Frequently they ask you questions that they know the answer to Think of an investigation as a morality play Lying dishonest doctors deserve harsher punishments that doctors who have made honest mistakes Never alter records they probably have a copy from another source ie. insurance co.
SURVIVAL STRATEGY If you have done something wrong tell your attorney the truth It is the attorneys job to figure out how to minimize the consequences of you action If the care is controversial there are peer review articles that can sometimes justify your care If you have flaws in the way you run your office you can take pro active corrective measures
SURVIVAL STRATEGY Investigators will treat you more favorably if you admit that there was a problem and you have already taken action to correct the problem An experienced lawyer who is truly on your side can negotiate effectively to reduce the punishment If your lawyer is not doing a good job change lawyers
SURVIVAL STRATEGY If you have been previously convicted of wrongdoing and are being investigated for the same issue be prepared for a harsh penalty Agencies do not like repeat offenders Once you have been convicted or admit guilt you are on the radar. Undercover patients will be sent to your office
NY CATARACT CASE Doctor enters into plea agreement regarding unnecessary cataract surgery Several years later he recommends cataract surgery to longstanding patient During medical clearance an internist On direct ophthalmoscopy does not see signs of a cataract
NY CATARACT CASE Internist refers patient to another ophthalmologist ( LASIK surgeon) who corrects patient to 20/20 and advises patient not to have cataract surgery Doctor charged with professional misconduct Dr. Charged with improper work up and recommending surgery that is not indicated
NY CATARACT CASE Performing unnecessary diagnostic tests Bizarre and illogical conclusions at hearing including the fact that internist can diagnose cataract with direct ophthalmoscope but ophthalmologist needs dilated exam Patient not witness Patient could have lied during testing Patient not examined by independent MD
NY CATARACT CASE Doctor convicted of two counts of misconduct Incompetence in evaluating patient’s cataract Performing unnecessary test (A Scan) Hearing panel recommends fine and suspension Case appealed within agency and appellate body revokes license
APPEAL OF A CONVICTION Evidence did not justify conviction Penalty is too harsh Legal errors
APPEAL OF A CONVICTION Wrongful conviction Courts defer to expertise of investigative agency with regard to finding of facts Agency presumed to know better than courts if improper medical care has been rendered If finding of facts is flawed and logically inconsistent court can intervene (rare)
APPEAL OF A CONVICTION It is illogical for a panel to conclude that an internist can diagnose a cataract with a direct ophthalmoscope while an ophthalmologist needs a slit lamp and dilated exam The fact that the internist was allowed to testify as an expert and the fact that the hearing panel attached weight to his testimony could be grounds for rehearing If that happens plea bargain to keep license
APPEAL OF A CONVICTION Punishment is too severe Courts will never overrule on penalty You can use punishment statistics during plea bargaining but not post verdict If this is your lawyers strategy fire them
APPEAL OF A CONVICTION Legal errors This is where the best chances are Did the judge improperly admit or exclude evidence that could have been outcome determinative Did the agency improperly apply the law In NY case you need to be convicted of two counts of misconduct to be charged
APPEAL OF A CONVICTION In NY case the two misconduct charges were the incompetence in working up and evaluating the patients cataract and performing an unnecessary A Scan If you can argue that the incompetence of the work up and performing the A Scan was only one count of professional misconduct then you win
CONCLUSION Licensing investigations are serious and could result in actions that could revoke your medical license or destroy your livelihood Experienced legal counsel should be sought before you have any contact with the investigators Always tell the truth, do not alter records, do not open Pandora’s box with foolish statements Act proactively if you are guilty take corrective action offer credible explanations
MALPRACTICE AN INSIGHT INTO MALPRACTICE MICHAEL T. GOLDSTEIN, M.D., J.D.
ATTORNEY’S ASSESSMENT What is the value of the case What is the probability of winning (records and expert) What are the costs involved Depositions can have a positive or negative impact on the case
DISCOVERY What is the doctors version Attorney wants to pin doctor down Doctor cannot say different things at trial than doctor says during the deposition. Preparation essential Can doctors deposition be torn apart and used against doctor at trial Does doctor trip up and say something stupid
PRE TRIAL Case Dropped Case Settled If there is no agreement case will eventually go to trial
TRIAL Jury selection is critical Both sides want to pick a jury that will more likely be on their side There is an art to jury selection If one side is weak at jury selection then the jury will most likely be less sympathetic to that side Right to challenge jurors, cause and peremptory challenges
DAMAGES Economic Medical costs Loss of income Costs of care Non Economic Pain and suffering
OTHER CONSEQUENCES License Investigation Malpractice Surcharge Malpractice policy non renewal Lawsuit value over insurance Other patients with same or similar problem might sue
LASIK MALPRACTICE LASIK accounts for approximately 20% of all Ophthalmology malpractice claims LASIK Malpractice Attorneys aggressively promote their services on the Internet Large Settlements fuel the fire for additional lawsuits
TAKE HOME MESSAGE LASIK Can Be Dangerous to Your Economic Future One Large Verdict Could Wreck Financial Havoc on Your Life What Would be the Financial Effect of a 5 Million Dollar Verdict on Your Life The Good News is that Plaintiffs Attorneys are Just Learning About LASIK
CAUSES According to OMIC 50% of the 2006-2007 settlements involved ectasia Ectasia is either secondary to forme fruste keratoconus pellucid degeneration or to leaving too little corneal tissue in the posterior cornea
ALTERED MEDICAL RECORDS Failure to diagnose form fruste keratoconus Combined with altered medical records
LASIK June 11, 2009 PRESS RELEASE - FOR IMMEDIATE RELEASE Johnson Devadas and Saramma Devadas v. Dr. N., Manhattan LASIK Center, PLLC, and NewSight Laser Center, PLLC New York County, Supreme Court of the State of New York Index # 107637/07 $5.6 MILLION LASIK EYE MEDICAL MALPRACTICE VERDICT. On Wednesday, June 10, 2009, a jury in New York City returned a verdict of nearly $5.6 million against Dr.N., for LASIK malpractice.
LASIK The verdict consisted of an award of: $2,360,000 for the patient’s loss of income; $3,100,000 for the patient’s pain and suffering, including loss of life’s enjoyment; and $120,000 for the patient’s wife’s claim for loss of her husband’s services and consortium. This is the second largest verdict ever for LASIK malpractice
LASIK The plaintiff, Johnson Devadas, is a pharmacist who lives and works in Queens, New York. On March 25, 2004, Dr. N. concluded that Mr. Devadas was a suitable candidate for LASIK surgery. However, plaintiff’s medical expert testified that he was not. Paul Donzis, M.D., an ophthalmologist and cornea specialist from Los Angeles, California, testified that prior to the elective surgery, the plaintiff had a contraindication to LASIK surgery, forme fruste keratoconus.
LASIK However, as a result of the LASIK surgery, it caused the cornea to develop post-LASIK ectasia, or a progressive thinning of the cornea. Ectasia causes problems with visual quality, including blurriness, halos, double vision, glare, contrast sensitivity, starbursts and a host of related phenomena involving the distortion of light as it passes through the diseased cornea.
LASIK In addition to Dr. Donzis, plaintiffs called Albert Lyter, Ph.D., from Raleigh, North Carolina. Dr. Lyter is a former federal agent trained in ink dating analysis. Dr. Lyter testified that Dr. N. intentionally artificially aged a note in his chart concerning his purported conversation with the patient and his wife concerning the risks, benefits, and alternatives to LASIK surgery.
COMANAGEMENT AAO and ASCRS have guidelines that although not the standard of care can be detrimental to a surgeon who ignores them Simplest issue for the Plaintiff’s Lawyer and the Jury Surgeon is responsible for the pre-operative work up
PRE OP WORK UP When the pre operative evaluation is done by someone other than the surgeon the surgeon is still responsible for the misdiagnosis of pre- existing conditions
LASIK FALL 2003 TLC Pays $900,000 to Settle Malpractice Lawsuit Against Dr. B. Using assembly-line-like procedures, TLC-employed optometrists oversaw initial testing procedures, pre- qualified patients for surgery, and then lined up surgical candidates upon whom Dr. B. would fly in to operate. Surgery was performed on both of Judge Hoch’s eyes on the same occasion.
LASIK By all accounts, Dr. B.’s surgical technique was flawless. By Dr. B.’s own candid admission, however, Judge Hoch never should have been operated on at all. The screening tests conducted by TLC and provided to Dr. B. for review before surgery showed that Judge Hoch had a condition called keratoconus – irregularly shaped corneas – that disqualified him for LASIK surgery.
LASIK TLC agreed to pay $900,000 to settle the portion of the case directed against it. Trial preparation for the case against Dr. B. continued until a separate negotiated settlement was reached with Dr. B.’s liability insurance carrier.
COMANAGEMENT Discovery of Surgeon and Comanagers Chart Fee Arrangement Is your fee arrangement outside the norms (kickback) Liability as a Joint Venture Both Office Staffs can be questioned
PERFORMANCE OF LASIK The operating ophthalmologist has the following responsibilIties: Confirm the identity of the patient The operative eye That the parameters are correctly entered into the laser's computer
COMANAGEMENT The ophthalmic surgeon has the primary responsibility for the preoperative assessment and postoperative care of his/her patients, regardless of the type of surgery performed . The decision to co-manage should be the result of a determination of what is best for the patient and not economic considerations
COMANAGEMENT In the event that the ophthalmologist needs to co-manage with an optometrist(s), the ophthalmologist should: Verify and document that the optometrist(s) has the appropriate education, training and skills to follow patients post-operatively.
COMANAGEMENT Develop standardized guidelines and protocols regarding postoperative care of patients, particularly concerning communications Prior to surgery, inform the patient if there are any prearranged postoperative management plans, and the patient must voluntarily consent to this in writing
COMANAGEMENT Inform the patient of the financial implications resulting from the co-management arrangement, particularly with regard to the patient's payment obligations and the postoperative provider's reimbursement.
COMANAGEMENT Follow the patient until postoperatively stable, and there is no fixed time when the patient is sent back to the referring provider Reassure the patient that he/she has access to the surgeon, if necessary, during the postoperative period at no additional cost.
FUTURE PROBLEMS LASIK Can be a Growth Industry for Plaintiff’s Lawyers Age and Income of Patients, Create the Potential for Long Term Economic Damages and Long Term Pain and Suffering which will Lead to More Large Verdicts Large Verdicts Fuel the Growth of LASIK Malpractice
OTHER ISSUES LASIK Malpractice Verdicts can Exceed the Policy Limits of Most Physicians A Large LASIK Malpractice Verdict Could Bankrupt a Physician PHYSICIANS WHO PERFORM SIGNIFICANT AMOUNTS OF LASIK SURGERY SHOULD CONSIDER ASSET PROTECTION STRATEGIES
DEMANDS TO RETURN FEES MCO’s have the right to audit the charts of Participating Providers. MCO’s frequently hire outside firms to audit the charts. Auditing companies are paid a percentage of the funds recovered Audit companies have a financial incentive to recover funds
RECOVERY CONTRACTORS Recovery contractors conduct audits for insurance companies. They take a sample of charts and then review them. If they feel that the MCO is entitled to a refund then they extrapolate the findings of a sample of the charts to determine if there is money due the MCO The most common areas are Upcoding Billing for unnecessary services Failure to document service
RECOVERY AUDITS Rights and Obligations of Par vs. Non-Par Physicians Participating Physicians Have a Contract Non Participating Physicians do not have a Contractual Relationship with the Carrier
PARTICIPATING PHYSICIANS Governed by the Contract Right to Request Records Right to Audit Right to Conduct Random Audits Right to Extrapolate Right to Demand Recovery Right to Arbitrate Rules of Evidence do not apply
NON PARTICIPATING No Privity of Contract Because of HIPAA may need Patient’s Permission to Supply Records Cases tried in State Court Traditional Rules of Evidence
CONCLUSION PHYSICIANS NEED TO UNDERSTAND STRUCTURE OF MANAGED CARE OPTIMIZE BARGAINING POWER REVIEW THE CONTENT OF THE CONTRACTS WITH LEGAL GUIDANCE KNOW THEIR RIGHTS REGARDING PARTICIPATION PRO ACTIVELY DEFEND AGAINST GIVE BACK DEMANDS NON DISCLOSURE AGREEMENT
FEDERAL RECOVERY False Claims Act $5,000-10,000 per claim plus treble damages A single HCFA form is one claim Fraud and Abuse, a criminal statute Strike forces, DME, Home Infusion Therapy Stark Qui Tams (Whistleblower) Recovery Audit Contractors
RECOVERY AUDIT BLOG I have a client who has been notified by the Eastern Benefit Integrity Support Center that he is being placed on pre- pay review. This letter came only two weeks after some requests for further documentation justifying his billing for all services. Does anyone know by what criteria the RAC selects providers for this kind of treatment? It doesn't smell random to me. (No responses)