PHYSICIANS UNDER SIEGE

NAVIGATING LEGAL HURDLES

Michael T. Goldstein, M.D., J.D.

Kurt Buzard, M.D.

DISCLOSURE

THERE ARE NO CONFLICTS OF INTEREST

CONTACT INFORMATION Michael T. Goldstein, M.D., J.D. 115 East 61st St. Suite 3A New York, N.Y. 10065 212-371-6209 Email: mgvisionny@aol.com

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

REGULATION OF PHYSICIANSMICHAEL T. GOLDSTEIN, M.D., J.D.

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

STATISTICS

Disciplinary Action Stastics NY

Censure/Reprimand – Other 16% Censure/Reprimand – Probation 12% Dismissal 3% Revocation 11% Surrender 26% Suspension 32%

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

MICHAEL T. GOLDSTEIN, M.D.,J.D.

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 eyeThat 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

MANAGED CARE AND RECOVERY

AUDITS

MICHAEL T. GOLDSTEIN, M.D., J.D.

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)