Small Business Health Relief Act designed to repeal pieces of Health Care legislation

A recent bill introduced to Congress includes provisions that, if passed, result in repeal of certain PPACA (“Patient Protection and Affordable Care Act”)  provisions.  The bill repeals certain requirements dealing with shared responsibility for employers and requiring employer reporting of health insurance coverage.  The bill allows reimbursement for over the counter medication by repealing the PPACA provision prohibiting the same. The bill broadens grandfathered coverage and elminates annual caps on health FSA benefits imposed by PPACA.  Developments will be provided in follow up posts.

MEDICAL MALPRACTICE DISCUSSION WITH EXPERTS: WILLIAM LAMSON, MEDICAL MALPRACTICE DEFENSE ATTORNEY

Bill Lamson is a partner of Lamson, Dugan and Murray and Chairman of the Firm’s Litigation Department.  Bill is well recognized and highly sought in the area of medical malpractice defense. 

Mr. Lamson is a 1969 graduate of the University of Nebraska. He was inducted into the American College of Trial Lawyers in 1985 and the International Society of Barristers 1996. He is also a member of the Nebraska Defense Lawyers Association, and a member of the Defense Research Institute.

For more information on Bill Lamson and the well respected law firm of Lamson, Dugan and Murray, see www.ldmlaw.com

 Below are Mr. Lamson’s responses to our series of questions on medical malpractice:

Q.  Nebraska passed “I’m sorry” legislation a few years ago.  The intention of the legislation is to provide physicians the opportunity to apologize to a patient for a negative result without having such apology used against the physician in a medical malpractice lawsuit.  Do you think that physicians should take advantage of such legislation?  If so, in what instances? What is the danger of writing such a letter?   

 Mr. Lamson’s response:  States that have passed “I’m sorry” statutes have differed in the scope of protection provided.  The Nebraska statute, like most others, is narrowly drafted to protect only statements of sympathy or compassion, but not statements of fault in relation to an unanticipated outcome of medical care. 

Expressions of apology and sympathy are important in building relationships of trust with patients and families.  On the other hand, expressions of fault or other explanations regarding an unanticipated outcome often require speculation on the part of the physician and will be admissible as evidence should the physician be sued and the case proceed to trial.  Physicians should therefore provide apologies with caution, understanding the limitations of the protection afforded by the “I’m sorry” statute.  

 The discussion of legal issues related to this legislation is not to be confused with requirements set forth in physicians’ codes of ethics, such as the AMA Code of Medical Ethics, which should always be observed.     

Q. If you were to review the office procedures for a medical practice, what three or four procedures would you want to see (1) in writing; and (2) actively followed?

Mr. Lamson’s response:

Responding to patient phone calls and documentation thereof

 Follow-up on outside lab/test results

 Updating patient’s recent history, especially re: other physicians seen, medications prescribed by other physicians

 Documentation of Patient Education/Informed Consent

 Q.  It is often said that the physician/patient relationship is an important aspect of a successful treatment relationship.  Do you agree with that statement? If yes, what would be important in the physician/patient relationship?

Mr. Lamson’s response:

Yes.

 Patients who sue are often angry about perceived attitudes on the part of the physician.  They describe a lack of caring, or indifference, and lack of listening to the concerns of the patient or family.  This is often a misperception of which the physician is unaware.  Taking steps to avoid this will benefit the patient and lessen the risk of litigation for the physician. 

  Trust is important in a physician/patient relationship.  Trust can be established by communicating with the patient on a level that he/she understands and allowing the patient to be involved to a reasonable extent in medical decision-making.  It is also established by speaking frankly with the patient while remaining nonjudgmental regarding personal medical issues.  Taking time to listen to patient concerns and to answer questions goes far in demonstrating an attitude of caring.  All of these actions are likely to assist in the establishment of a successful physician/patient relationship.        

Q.  What factors are particularly important in terms of quality documentation?

Mr. Lamson’s response:

Documentation entries should be dated and timed, legible, and factual.  They should provide enough information to tell a story that allows the physician or other healthcare provider to understand what has been going on with the patient.  Interdisciplinary communications should be documented, as should communications with consulting physicians and with the patient or family.  Patient education/informed consent should always be documented in the medical record, the specificity of which depends on the circumstances.  Errors should be corrected by lining through; never obliterate or attempt to change a medical record after-the-fact.  With electronic charting, avoid the temptation to simply “choose from the menu.”  Individualize by entering annotations as necessary.   

Q. If you were to create a preventive law checklist for medical practices, what would be three or four of the most important things on that checklist?

 Mr. Lamson’s response:

Perform an appropriate history/physical examination before prescribing any medication or treatment for a patient.

 Formulate a (differential) diagnosis when a patient is seen for a medical complaint.

 Follow-up after ordering any medication or treatment, or additional testing.

 Communicate with the patient/family regarding diagnosis, treatment, and recommendations; allow time for patient questions and input; ensure patient understanding.

 Document all of the above.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

MEDICAL MALPRACTICE EXPERT DISCUSSIONS

PVWLaw has asked a variety of medical malpractice experts to respond to a series of questions on medical malpractice.  The questions focus on what physicians can do proactively to prevent medical malpractice lawsuits as well as on some aspects of tort reform.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

Good Doctors Get Sued for Medical Malpractice: Physician Asset Protection Planning As a Way of Life

Medical Malpractice suits result in significant distress.  We preach regularly about all of the actions that physicians should take to avoid getting sued but the fact is “good doctors” get sued.  In addition to giving consideration to state laws, structure of practice, patient safety, practice standards (all covered in other blog topics), a physician should make asset protection planning a way of life from the day the physician commences practice.

We preach regularly about asset protection planning but given that we have seen a rise in lawsuits on questionable claims, we are going to revisit both strategies to avoid malpractice claims and steps that all physicians should be taking on a regular basis to protect themselves in the event the physician or a partner is sued. 

We will cover a variety of topics in detail in other blogs or on our website but here is a quick list in the area of asset protection planning.

*Put your estate plan in order before your first day of practice.  Good estate planners develop a plan that considers where you are now (which might be a lot of student loan debt) to where you are going.. You will have a retirement plan, a house and assets to protect. Start right away.  If you wait until a claim gets made some day, in most states, you are too late.   If you are many years into practice without a solid estate plan, do one now.  Include asset protection planning discussions as part of your plan.

*Know your state’s laws regarding malpractice insurance.  Understand your exposure.  Understand your exposure for the acts of others.  Get a personal attorney who reports to you and who has expertise in health care law and personal planning.

*Understand your malpractice insurance.  Go over the policy line by line and be clear about what is covered and where coverage ends.

*Take your personal insurance seriously.  Consider all types of potential liability.  Professional liability is not the only risk to your assets.   Consider the employee who gets in an automobile accident while driving to the hospital and kills a carload of engineers.

*If you choose private practice, spend time with a knowledgeable lawyer discussing the benefits of professional corporations as compared to the other options.  Serious consideration should be given to maximum liability protection.  Tax benefits can be achieved in most entity forms in the current climate.

*Asset protection planning has become a term of art for those of us who do health care law and estate planning.  There are numerous ways to achieve asset protection.  All of them require that asset protection planning be a way of life.  Again, planning after a claim is made is too late.

More detailed articles will be available here and at our website over the next few months.

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

Practice Management Tips for Physicians

1.  Have Contracts with Third Parties Reviewed and Have a Policy about who is authorized to sign contracts.  Permit only managing physicians to sign contracts… of any kind. This is often overlooked on simple things like a new photocopier.  The receptionist signs a contract without realizing the ramifications.  No one reviews it. No one realizes the term of the agreement.   Some agreements require the practice to notify the vendor of termination to avoid an auto renewal.  Designate someone to know the details of the office lease, the leases for the office equipment and any and all such agreements.  Track renewal terms.   On at least a quarterly basis, review the list of contracts and determine how to handle any upcoming renewals.

2.  Exercise care in selecting retirement plan investment managers.  While many CPA firms do a great job in managing retirement plan assets, we advise practices to keep the practice accounting functions and the plan investment management separate.  Use an independent accountant who is paid for accounting services and not compensated for the sale of financial products to you. 

3.  Know exactly what you are paying to any and all advisors.  While many clients dislike the bills from hourly or flat fee advisors, at least it is clear how much you are paying.  Avoid giving into the psychology of feeling like you didn’t have to pay anything because a commission came off the top and you didn’t have to write a check. There is a reason for the shift to administrative and investment expenses being paid from  plans and/or off the top.  You pay more but you feel like you paid less. Always be clear about cost.   If you are writing a check for health insurance premiums, you are paying a commission.  Do you know how much it is? 

4.  Protect yourself from medical malpractice lawsuits.  Review your malpractice insurance for the best possible coverage.  Make yourself as judgment proof as possible.  Real estate, furniture and equipment should not be owned by the medical practice.  Use another entity to own valuable assets.  The assets can then be leased to the medical practice, making them less accessible to a malpractice claimant.  Each physician should engage in personal creditor protection planning.  If you are sued for medical malpractice, keep in mind that the attorney representing you works for and is paid by your insurance carrier.  Most of the time, that works well but there are circumstances where you should engage an independent lawyer.  At a minimum, keep the practice’s business lawyer in the loop on any medical malpractice suits.   Of course, the best protection is to adopt top notch practices and policies for risk management so that suits are avoided in the first place.

5.  Maintain and regularly review insurance coverage for the practice.  We often find clients do not have sufficient protection for such things as employee theft or unowned automobile liability.  Review and consider all optional coverages. 

6.  Adopt policies and procedures that ensure compliance with all applicable medical laws.  While it is likely not necessary to engage in an exorbitantly expensive compliance audit, periodic reviews of billing procedures, patient file documentation and third party financial arrangements should be conducted by a trusted advisor with appropriate skills and experience.   Consultants should be hired through your lawyer so that any reports provided stay as confidential as possible pursuant to the attorney client privilege.

7.  Review the practice compensation plan.  Be certain that the plan complies with Stark and all applicable regulatory rules.

8.  Review your malpractice insurance coverage and be certain that you are maintaining adequate limits.

9.  Review the structure of your retirement plan.  Physician plans can readily be designed in a way that avoids most testing requirements and reduces administration costs while allowing physicians to maximize their contributions to the plan.

10.  Review and update the agreements between the partners.  Unfinished or archaic agreements are a recipe for disaster when one of the group members experiences a life changing event.  What happens when a physician becomes disabled? Dies? Becomes a drug addict? Has an affair with a nurse?

 

© 2009 Parsonage Vandenack Williams LLC

  For more information, contact info@pvwlaw.com

A Quick Overview of Covenants Not to Compete

 

In recent years, states have been split on the treatment of covenants not to compete in physician employment agreements. The vast majority of jurisdictions continue to apply a general “reasonableness’ standard often applied in other commercial contexts. Under a “reasonableness analysis, courts primarily look at two components of the restriction: (1) the time duration of the restriction; and (2) the geographic scope of the limitation. The greater the area covered and the time duration of the restriction on a physician’s ability to practice medicine, the greater the likelihood the entire covenant not to compete will be declared invalid. However, a growing minority of states have put further constraints on the enforceability of restrictive covenants in physician employment contracts. Three states, Colorado, Delaware and Massachusetts, have passed legislation that invalidates contractual provisions restricting a physician’s right to practice medicine after termination. 

 

Some states have also judicially tightened the restrictions on covenants not to compete in physician employment contracts. For example, the Supreme Court of Tennessee recently invalidated most restrictive covenants regarding physician employment contracts. The court noted that in Tennessee restrictive covenants are not allowed for attorneys because attorneys have an ethical duty to provide their services to the public, and to restrict to whom an attorney can provide services would be injurious to the public. The court then examined the doctor-patient relationship and noted that covenants not to compete were equally injurious in physician employment contracts. The court reasoned that covenants not to compete restrict a patient’s freedom of choice, restrict the patient’s right to maintain an ongoing relationship with a trusted physician, and result in the lost public benefit of having an increased number of available physicians practicing in the community. The court reasoned that an increased number of available physicians results in greater competition and a higher quality of care.

 

The harmful effects covenants not to compete can potentially create for patients have also been examined by the American Medical Association. The AMA has taken the view that “restrictive covenants are unethical if they are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation to a patient’s choice of physician.”

 

When drafting a covenant not to compete, or similar restrictions in an employment agreement for a physcian, the scope of the restrictions must be carefully considered as to prevent the terms of the agreement from being invalidated judicially. Attempt to provide too much protection to the remaining physicians and you may be left with no protection at all.

 

 

© 2009 Parsonage Vandenack Williams LLC 

 For more information, contact info@pvwlaw.com

Disaster Plan

A physician practice should have, and review at least annually, a disaster plan.  The specifics of the disaster plan depend in part on the location of the practice.  Consider susceptibility to snowstorms, tornadoes or hurricanes, floods, terrorist attack, West Nile virus, earthquakes, wildfires, and other possible disasters.  

Having a disaster plan in place is not enough. Review the plan with staff so that there is an awareness of the plans.  Consider occasional drills to practice response strategies.

© 2009 Parsonage Vandenack Williams LLC

 For more information, contact info@pvwlaw.com

Informal Consultations

An informal consultation at a casual lunch can result in a duty to a patient subjecting the consulting doctor to a malpractice claim.  While collegiality is an important part of the practice of medicine, be aware of the risk.  If you are engaging in an informal consultation, keep it informal and keep it generic.  Consider documenting the informal consultation with a note indicating that only generic discussions were involved.  Consult only in your area of expertise.  If discussions go beyond informal, then make the consultation formal and go through all the appropriate steps for such a consult.

© 2008 Parsonage Vandenack Williams LLC

 For more information, contact info@pvwlaw.com