Transcript Legal Aspects

Legal
Aspects
Parker College of Chiropractic
Jesse Green, J.D.
I.
•
•
•
•
Introduction
Website/Syllabus
Grading
Textbook
Attendance Policy
Goals:
Avoiding and Winning Litigation
• Avoiding Litigation:
– Doctor-Patient Rapport
• One in thirty-five events of negligence or incompetence resulted
in a lawsuit, based on a review of files in New York.
– Localio, A., et al., Relation Between Malpractice Claims And Adverse Events Due To
Negligence, The New England Journal of Medicine 325(4) (July 25, 1991) pp. 245-51.
• Only one in six malpractice claims involved “negligence.”
• The physicians without malpractice claims spent more time with
their patients, oriented patients more frequently to the flow of the
visit and used humor and laughter more often in their patient
encounters.
– Levinson, W., et al., Physician-patient Communication: The Relationship with
Malpractice Claims Among Primary Care Physicians and Surgeons, Journal of the
American Medical Association, 277(7) (Feb. 19, 1997) pp. 553-59.
– Avoid Mistakes
– Appropriate Response to Mistakes
Litigation Process
• Ten Steps to the Courthouse
– The Notice Letter
– The Original Petition
– The Answer
– Interrogatories
– Attorney Conference
– The Medical Records
– The Plaintiff’s Deposition
– The Physician’s Deposition
– Miscellaneous Matters
– The Courthouse
Litigation Crisis
•
•
•
•
Causes
McDonald’s Coffee Case
Brain Damage - $26 Million Verdict
Department of Justice Study (1995)
– Civil juries awarded punitive damages in just 6 percent of
successful suits, and that approximately half of these punitive
damage awards were for $50,000 or less.
– Only 2 percent of some 762,000 state court civil cases were
decided by juries. Plaintiffs won 52 percent of these 12,000 jury
trials. The median recovery in the 6,200 successful cases was
$52,000.
– Plaintiffs won approximately 30 percent of the 1,362 medical
malpractice cases. Punitive damages were awarded in 13 of these
403 successful cases. The punitive award exceeded $250,000 in
just four of the 13 cases.
• RAND Institute Study "Trends in Civil Jury
Verdicts Since 1985"
– There never has been a "litigation explosion.”
– Medical malpractice and product liability cases account
for a small percentage of all case filings.
– Plaintiffs win an average 56.6 percent of the time in all
cases, but they are least successful in medical
malpractice cases, in which they win just 33 percent of
the time.
– The two highest awards ($13.7 billion and $413 million)
occurred in business cases.
– Business cases and intentional tort cases accounted
for 80 percent of all punitive damages awarded.
– Medical malpractice was the underlying cause of action
in only 2 percent of all punitive damage awards.
New Case Filings
Texas County & District Courts 1992
Criminal
Family Law
Collections
Other
Worker's Comp
Auto PI/Damage
All other PI
• Malpractice Facts
– Less than 1 percent of health care costs.
– Losses paid amounted to only 31 cents out of
every $100 of health care spending.
– The rate of claims has declined at an average
annual rate of 8.9 percent.
– 44,000 - 98,000 Americans die each year from
medical mistakes
– 7,000 Americans die each year from medication
errors
– Only about 2,000 doctors (one-third of 1 percent
of all doctors nationwide) are disciplined each
year by state medical boards.
• Examples of Malpractice
– Boston Globe health columnist Betsy Lehman, a
39-year-old mother of two, died from a massive
overdose of a powerful chemotherapy drug at
Boston's prestigious Dana-Farber Cancer Institute.
This deadly error was detected by a computer
records employee -- not a doctor. The same
hospital also gave an overdose of a chemotherapy
drug to another woman who is now "seriously and
chronically debilitated from irreversible heart
damage." (New York Times, 3/27/95).
– At Tampa's University Community Hospital, a
surgeon amputated the wrong leg of 51- year-old
Willie King. Just two weeks later at the same
hospital, 77-year-old Leo Alfonso was killed when
a therapist negligently disconnected his ventilator.
• Examples of Malpractice
– The surgeon who removed the wrong leg was at it
again just three months later, amputating the toe
of a woman without her consent. He then tried to
cover up his error, claiming that the toe had simply
"fallen off." (USA Today, 3/13/95; New York Times,
7/19/95).
– Guadalupe Negron, a 33-year-old mother of four,
bled to death after a botched abortion performed
by Dr. David Benjamin in Queens, New York. Dr.
Benjamin, whose license had been revoked in
1993 for "gross incompetence and negligence" in
five separate instances, was allowed to practice
while the revocation was being appealed. It was
during his appeal that he sliced the fatal laceration
in Ms. Negron. (New York Times, 9/13/95).
• Examples of Malpractice
– Rajeswari Ayyappan, the 59-year-old mother of a
prominent Indian film star, was brought to worldrenowned Sloan-Kettering Cancer Center in New
York to have a malignant brain tumor removed.
The top neurosurgeon at this hospital operated on
the wrong side of her brain. Ms. Ayyappan now
suffers from severely impaired vision and no
awareness of her left side. (Washington Post,
7/25/95).
– In Denver, an 8-year-old boy died during a routine
ear operation when the anesthesiologist fell asleep
and failed to monitor the boy's condition. That
same anesthesiologist had fallen asleep during
surgeries numerous times before but was never
adequately disciplined. (Los Angeles Times,
8/24/95).
• Examples of Malpractice
– Two skin cancer patients at the New England
Medical Center, 52-year-old Donald Everett and
44-year-old Michael Arsenault, died after being
given three times the recommended dosage of the
highly toxic drug cisplatin. (Washington Post,
4/18/95).
– A surgeon at Butterworth Hospital in Grand
Rapids, Michigan, cut off the wrong breast of a 69year-old cancer patient during a mastectomy.
(USA Today, 3/27/95).
– A 4-year-old child bled to death four days after
receiving a tonsillectomy at St. Luke's Hospital in
New York. (New York Times, 7/18/95).
• Examples of Malpractice
– New York's prestigious Long Island Jewish Hospital has
recently been the site of two medical horrors. Denise
Verbeeck, a mildly retarded, 27-year-old former Special
Olympic athlete, died despite receiving successful elective
surgery on a damaged kneecap because of incompetence
on the part of her anesthesiologist. Lloyd Reback, a 25-yearold bodybuilder, underwent the successful removal of a
benign tumor from his chin, but he too suffered horrendous
injury after receiving negligent care from an anesthesiologist.
He is now in a deep, perhaps permanent, coma with
extensive brain damage. (New York Times, 8/1/95).
– At the University of Chicago Hospital, a 41-year-old father of
three with a curable form of testicular cancer died just five
days before Father's Day after receiving an overdose of a
chemotherapeutic drug. (New York Times, 7/18/95).
– A Milwaukee laboratory was charged with reckless homicide
after its misreading of Pap smears led to the deaths of two
women from cervical cancer. (New York Times, 7/18/95).
• Examples of Malpractice
– Three infants in a Maryland hospital were mistakenly given
morphine due to a mix-up of medicine bottles, but luckily did not
suffer any permanent injuries. (USA Today, 3/27/95).
– Cancer patient Harry Jordan checked into a California hospital to
have his diseased kidney taken out, but surgeons for some
inexplicable reason removed the healthy kidney instead. Mr.
Jordan was forced to spend the rest of his life on dialysis and
suffered untold financial hardship due to California's harsh
$250,000 cap on non-economic damages. (USA Today, 4/14/95).
– At Osteopathic Medical Center of Texas, doctors removed the
wrong lung of 59-year-old Benjamin Jones, leaving him with one
cancerous lung. After botching this operation, doctors then
conspired to cover up their mistakes by suppressing information
and falsifying documents. Jones died soon after this medical
catastrophe. (Fort Worth Star-Telegram, 12/11/94).
• Examples of Malpractice
– A hospital in Florida cut off the air supply for 56
patients for almost 15 minutes. The error left a 55year-old women in critical condition. (New York
Times, 6/15/95).
– A surgeon in Boston removed the wrong kidney
from a patient after failing to check x-rays that
would have revealed this tragic error. (Boston
Globe, 6/1/96).
– A doctor in Las Vegas failed to remove a patient's
appendix during an appendectomy. Although the
doctor had severed it and stitched the stump, he
neglected to extract it from the patient's body. The
appendix ate its way through the patient's skin,
resulting in a hole in his stomach. (Las Vegas
Review-Journal, 4/24/96).
• Examples of Malpractice
– Donald Church mystified security guards at Sea-Tac Airport in
Washington State when he set off metal detectors just a few
weeks after having surgery to remove a stomach tumor.
However, an X-ray machine would have shown why. That's
because surgeons at the University of Washington Medical
Center accidentally left a 13-inch-long, 2-inch wide retractor
inside the Seattle man. Seattle Post-Intelligencer, December 4,
2001
– The estate of a Massachusetts woman who died of breast
cancer recently settled a lawsuit against the gynecologist who
misdiagnosed the cancer, allowing it to spread until it was too
late to be treated. The lump was first noticed when the patient
was 33 years old. The doctor also noted the lump when the
patient returned for her annual physical when she was 34 and
35 years old. The doctor did not order any test to determine
whether the lump was cancerous until she returned for her
annual physical after her 36th birthday. In pretrial proceedings,
the doctor acknowledged that a physician can never tell a
cancerous mass from a benign one by touch alone and that
there were any number of tests he could have ordered to
determine whether the lump was cancerous.
• Examples of Malpractice
– Jessica Santillan, just 17 years old, died February
23, 2003 from medical malpractice after doctors
transplanted organs of the wrong blood type into
her body.
– Linda McDougal had both of her breasts surgically
removed after her doctor mistakenly told her she
had an aggressive cancer. McDougal went in for a
mammogram and when a dark spot was detected,
her doctor suggested a biopsy. A hospital
pathologist switched McDougal's test results with
those of an actual cancer patient. That mix-up led
to her double mastectomy just three weeks later.
ATLA Fact Sheet
Q. What's wrong with capping damages for injured patients in medical
malpractice cases?
Q. President Bush and a recent report claim Americans can't find
medical care because doctors are being forced to quit their practices
due to high malpractice insurance rates. Is this true?
Q. Are frivolous lawsuits causing doctors' medical malpractice insurance
rates to skyrocket?
Q. If Congress puts limits on lawsuits by injured patients, will it solve the
problem of skyrocketing medical malpractice insurance rates for
doctors?
Q. Are jury awards in medical malpractice cases out of control?
Q. Isn't limiting "pain and suffering" damages a good idea since they're
only awarded in frivolous cases where people don't have real
injuries?
Q. Will limits on medical malpractice lawsuits help make health care
more affordable for patients?
Q. President Bush and cap supporters say there are too many frivolous
lawsuits against good doctors. Is this true?
Impact of Being Sued
• Insurance
• Monetary
• Psychological
– Withdrawal
• Professional
• Personal
– Patient Phobia
Reasons to Practice Ethically
• Criminal Liability
• Civil Liability
– to Patients
– to Third Party Payors
• License Sanctions
• Exclusion from Government Programs
Criminal Liability
• Kickbacks
– “Paid” Referrals
• Waiver of Co-Payments / Deductibles
• Cash Discounts
• Coding
– Miscoding
– Upcoding (pp. 85-90)
• 99201 v. 99205
– Unbundling
– False Time Claims
Criminal Liability
• Unnecessary Services
– Billing consultant
• PI Practices - Bribery, Fictitious claims
• Forging records to show medical
necessity
• Practice of veterinary medicine
Civil Liability
• Qui Tam - False Claims Act
• Sexual Misconduct
– McCracken v. Walls-Kaufman (consensual
sexual relationship)
– McIntyre v. Fanous (Podiatrist, 12 year old
girl)
Sexual Misconduct
•
•
•
•
Vague Rules
Defenses ?
Boundaries
Harsh Consequences
Vague Rules
• Texas Chiropractic Act
– “grossly unprofessional conduct”
• Texas Administrative Code
– “It shall be considered grossly unprofessional conduct
for a licensee . . . to engage in sexual misconduct with
a patient within the chiropractic/patient relationship.”
Definition of Sexual Misconduct
Sexual misconduct as used in subsection (a)(3) of this section means:
(1) sexual impropriety which may include:
(A) any behavior, gestures, or expressions which may reasonably be
interpreted as inappropriately seductive or sexually demeaning;
(B) inappropriate sexual comments about and to a patient or former
patient including sexual comments about an individual's body;
(C) requesting unnecessary details of sexual history or sexual likes and
dislikes;
(D) making a request to date;
(E) initiating conversation regarding the sexual problems, preferences,
or fantasies of the licensee;
(F) kissing or fondling of a sexual nature; or
(G) any other deliberate or repeated comments, gestures, or physical
acts not constituting sexual intimacies but of a sexual nature; or
(2) sexual intimacy which may include engaging in any conduct that is
sexual or may be reasonably interpreted as sexual, such as (A) sexual
intercourse; (B) genital contact; . . . (J) any bodily exposure of normally
covered body parts.
Defenses ?
The Patient Consented
Texas Administrative Code
It is not a defense . . . if the sexual impropriety
or intimacy with the patient occurred:
(1) with the consent of the patient;
(2) outside professional treatment sessions;
or
(3) off the premises regularly used by the
licensee for the professional treatment of
patients.
Defenses ?
Termination of Doctor/Patient
Relationship
– It is a defense “if the patient was no
longer emotionally dependent on the
licensee when the sexual impropriety
or intimacy began, and the licensee
terminated his or her professional
relationship with the person more than
six months before the date the sexual
impropriety or intimacy occurred.”
Defenses ?
Termination of Doctor/Patient Relationship
• Is a “cooling off” period good for the
profession?
• FCLB - “Many health professions and
licensing boards are promulgating stringent
standards governing sexual misconduct
between doctor and patient, requiring
termination of the doctor/patient relationship
prior to engaging in sexual contact and a
"cooling off" period of varying lengths.”
Defenses ?
Termination of Doctor/Patient Relationship
• Florida - one year
• Colorado - prohibits “engaging in a sexual act with a patient during the
course of such patient’s care or within six months immediately following
termination of the chiropractor’s professional relationship with the patient.”
Oregon prohibits sexual relations only with a “current” patient. § 811-0350015(1)(b).
• Massachusetts has a 90 day waiting period 233 C.M.R. 4.06(n)
• Nevada prohibits sexual conduct or sexual relations unless the doctor-patient
relationship has been terminated for a “reasonable time.”
– Nev. Admin. Code § 634.430(3)(d).
• New Jersey provides that “[a] licensee shall not engage in sexual contact
with a patient with whom he or she has a patient-physician relationship. The
patient-physician relationship is considered ongoing for purposes of this
section unless: 1. Activity [sic] terminated, by way of written notice to the
patient and documentation in the patient record; or 2. The last professional
service was rendered more than three months ago.”
– N.J. Admin. Code § 13:44E-2.3(c).
• South Carolina provides a three month “cooling off period.
– S.C. Admin Code § 25-7(F).
Defenses ?
The Sexual Relationship Existed Before the Doctor/ Patient Relationship
• ACA Opinion: “Doctors of Chiropractic should make every effort to
avoid dual relationships that could impair the professional judgment
or risk the possibility of exploiting the confidence placed in them by
the patient.”
– Am I trained to meet my relative’s (friend’s) medical needs?
– Am I too close to probe my relative’s (friend’s) intimate history and
physical being and to cope with bearing bad news if need be?
– Can I be objective enough not to give too much, too little, or
inappropriate care?
– Is medical involvement likely to provoke or intensify intrafamilial
conflicts?
– Will my relatives (friends) comply more readily with medical care
delivered by an unrelated physician?
– Will I allow the physician to whom I refer my relative (friend) to
attend him or her?
– Am I willing to be accountable to my peers and to the public for
this care?
– LaPuma and Priest, JAMA 1992; 267 (13): 1810-1812
Boundaries
1. Role
2. Time
3. Place And Space
4. Gifts
5. Clothing
6. Family/friends
7. Physician Self-disclosure
8. Physical Contact
9. Money
10.Language
Protection Strategies
– Have a parent present for exams of minors
– Have a Staff Member in the Room
– Don’t talk about it. Don’t joke about it. Don’t
have pictures of it. Don’t do it. Don’t even
think about it.
– Use a “safe touch protocol”™
• Anatomical Risk Levels
• Pre-Touch Thinking Process, Pre-touch
Communication Process, Provide Safety during
the procedure, Post-touch communication,
Post-touch self-evaluation
– Redleaf, Behind Closed Doors
Protection Strategies
– Office Procedures (p. 27)
•
•
•
•
•
•
•
•
Don’t date staff members
Don’t allow Assoc. Drs. To date staff
Don’t allow staff to date each other
Don’t render professional services to staff, unless provided
with the same formality and dignity as other patients
Maintain records when treating staff
Use an office manual with a policy against sexual
harassment
Investigate and respond to allegations of sexual
harassment
Document any disciplinary action taken
– Avoid provocative behavior and banter
– Investigate and act upon employee complaints
Harsh Consequences
• Discipline
• Malpractice Risk
– Insurance exclusion
• Reputation
Civil Liability
• Fiduciary Duty - Garcia v. Coffman (p.15)
– PI settlement
– PI mill with inflexible treatment and
diagnostic regimen
– M.D. second opinions
– $75,000 in punitive damages
– Piercing the corporate veil
License Sanctions
• Typical Prohibitions
– Fraud, deception, misrepresentations or bribery to
obtain license
– Impersonation
– Conviction of certain crimes
– Substance Abuse
– False, deceptive or misleading advertising
– Willful breach of confidentiality
– Aiding another to practice without a license
– Practicing without a license
– Discipline in another state
– Failure to cooperate with disciplinary authority
– Failure to complete continuing education
License Sanctions
• Unusual prohibitions
– Safe and sanitary conditions
– Trust Accounts
– Mandatory malpractice insurance
– Discrimination (including AIDS)
– Delinquent taxes, student loans, child
support (Texas Rule)
• “Simple Malpractice”
Inter-professional Hazards
• D’Amour (p.30)
– Dentist told patient that treatment of TMJ
would improve scoliosis
• Cicmanec
– DC “purchased” MD degree
• Fulk
– DC referred patient to a person who was
not licensed for colonic irrigation
Records
• Texas Rule
– (a) An adequate chiropractic record for each patient shall be
maintained for a minimum of seven years from the anniversary date
of the date of last treatment.
– (b) If a patient was younger than 18 years of age when last treated
by a licensee, the chiropractic records of the patient shall be
maintained until the patient reaches age 21 or for seven years from
the date of last treatment, whichever is longer.
– (c) Chiropractic records that relate to any civil, criminal or
administrative proceeding shall not be destroyed until the
proceeding has been finally resolved.
– (d) Chiropractic records shall be maintained for such longer length
of time than that imposed by this section when mandated by other
federal or state statute or regulation.
– (e) Each licensee practicing at a facility and each facility is equally
responsible for compliance with this section.
• 22 TAC § 80.5. Maintenance of Chiropractic Records (effective February 7, 2001)
Records
• Don’t charge exorbitantly to release records
– Fee for records. The licensee may charge a reasonable fee for furnishing
the information requested under subsection (a) of this section, in
accordance with the following provisions:
(1) The fee shall be paid by the patient or someone else on the patient's behalf.
(2) A licensee may require payment in advance except from another licensee or
other health care provider, . . . if requested for purposes of emergency or acute
medical care.
(3) In the event payment is not received, within ten calendar days from notification
of the charge, the licensee shall notify the requesting party in writing of the need
for payment.
(4) A reasonable fee for a paper copy shall be a charge not to exceed:
(A) $30 for retrieval of records and processing the request, including copies for the first 10
pages;
(B) $1.00 per page for pages 11-60;
(C) $.50 per page for pages 61-400; and
(D) $.25 per page for pages over 400;
(5) A reasonable fee for copies of films or other static diagnostic imaging studies
shall be a charge not to exceed $45 for retrieval and processing, including copies
for the first 10 pages, and $1.00 for each additional page over 10.
(6) Reasonable fees may also include actual costs for mailing, shipping or delivery.
– 22 TAC § 80.3(e)
• No doctor’s lien
Marketing
• Public displays, Screenings (Maryland)
• Patient Solicitation
– In person or by telephone
– Referral service or bureau
– Telemarketing
– Use of Accident Reports
– Signage
• Advertising
– Immediate pain relief
– Free exams / Bait and switch
Fee Regulation
• No Out of Pocket Expense
• Waiver of deductibles and co-payments
– Woods Psychiatric Institute (p. 43)
• Financial Hardship cases
– Kennedy v. Cigna (p. 44)
• Insurance payment denied
Deductible Waiver
• AMA Opinion (6.12)
– Under the terms of many health insurance policies or
programs, patients are made more conscious of the cost
of their medical care through copayments. By imposing
copayments for office visits and other medical services,
insurers hope to discourage unnecessary health care. In
some cases, financial hardship may deter patients from
seeking necessary care if they would be responsible for
a copayment for the care. Physicians commonly forgive
or waive copayments to facilitate patient access to
needed medical care. When a copayment is a barrier to
needed care because of financial hardship, physicians
should forgive or waive the copayment.
Deductible Waiver
• AMA Opinion
– A number of clinics have advertised their willingness to provide
detailed medical evaluations and accept the insurer's payment but
waive the copayment for all patients. Cases have been reported in
which some of these clinics have conducted excessive and
unnecessary medical testing while certifying to insurers that the
testing is medically necessary. Such fraudulent activity exacerbates
the high cost of health care, violates Opinion E-2.19 and is
unethical.
– Physicians should be aware that forgiveness or waiver of
copayments may violate the policies of some insurers, both public
and private; other insurers may permit forgiveness or waiver if they
are aware of the reasons for the forgiveness or waiver. Routine
forgiveness or waiver of copayments may constitute fraud under
state and federal law. Physicians should ensure that their policies
on copayments are consistent with applicable law and with the
requirements of their agreements with insurers.
Deductible Waiver
• Special Fraud Alert: Routine Waiver of Copayments or
Deductibles Under Medicare
• To help reduce fraud in the Medicare program, the Office of Inspector
General is actively investigating health care providers . . . [who] routinely
waive (do not bill) Medicare deductible and copayment charges to
beneficiaries for items and services covered by the Medicare program.
• Routine waiver of deductibles and copayments . . . is unlawful because it
results in (1) false claims, [A provider who routinely waives Medicare
copayments or deductibles is misstating its actual charge.] (2) violations
of the anti-kickback statute, and (3) excessive utilization of items and
services paid for by Medicare. [When providers forgive financial
obligations . . . they may be unlawfully inducing that patient to purchase
items or services from them.]
• One important exception to the prohibition against waiving copayments
and deductibles is that providers . . . may forgive the copayment in
consideration of a particular patient's financial hardship. This hardship
exception, however, must not be used routinely; it should be used
occasionally to address the special financial needs of a particular
patient. Except in such special cases, a good faith effort to collect
deductibles and copayments must be made.
Deductible Waiver
• Advisory Opinion 97-4
– We are writing in response to your request for an advisory
opinion, in which you ask whether declining to pursue
collection of copayments from certain patients who have
employer-sponsored Medicare complementary coverage
constitutes grounds for imposition of sanctions . . .
– Based on the information provided and subject to certain
conditions described below, we conclude that the
proposed arrangement may constitute grounds for the
imposition of civil monetary penalties under Section
231(h) of HIPAA. We further conclude that the proposed
arrangement may constitute grounds for the imposition of
criminal penalties under 1128B(b) and for exclusion under
1128(b)(7) (as it relates to kickbacks) of the Social
Security Act.
• Professional Courtesy
• Texas Statute
Mark ups
(a) A person licensed in this state to practice . . . chiropractic
may not agree with a . . . laboratory to make payments to the
laboratory for individual tests, combinations of tests, or test
series for a patient unless:
(1) the person discloses on the bill or statement to the
patient or to a third party payor the name and address of the
laboratory and the net amount paid to or to be paid to the
laboratory; or
(2) discloses in writing on request to the patient or third party
payor the net amount.
(b) The disclosure permitted by Subsection (a)(2) must show
the charge for the laboratory test or test series and may
include an explanation, in net dollar amounts or percentages,
of the charge from the laboratory, the charge for handling, and
an interpretation charge.
Tex. Health & Safety Code § 161.061
Dual Fee Schedules
• Discount for patients who pay cash
• Texas Insurance Code, art 21.79F
(a) A person commits an offense if the person intentionally
or knowingly charges two different prices for providing
the same product or service, where the higher price is
based on the fact that an insurer will pay all or part of the
price of the product or service.
(b) An offense under this article is a Class B misdemeanor.
..
(d) This article does not apply to the provision of health
care services to Medicaid or Medicare patients or to
medically indigent persons who qualify for sliding fee
scales.
• Discounts not based on insurance are permitted
e.g., PAD, Group discounts
Referral Fees
• Texas Statute:
– A person commits an offense if the person
intentionally or knowingly offers to pay or
agrees to accept any remuneration directly or
indirectly, overtly or covertly, in cash or in
kind, to or from any person, firm, association
of persons, partnership, or corporation for
securing or soliciting patients or patronage for
or from a person licensed, certified, or
registered by a state health care regulatory
agency.
– Class A Misdemeanor or 3rd Degree Felony
– Tex Health & Safety Code § 161.091
Fee Splitting
• Percentage to Associate doctor
• Percentage to Management Company
• Percentage to Partner/Investor
• Percentage to CA
• $50 referral fee to attorneys
• OIG Advisory Opinion 98-4
– We are writing in response to your request for an advisory opinion, in
which you ask whether a proposed management services contract
between a medical practice management company and a physician
practice, which provides that the management company will be
reimbursed for its costs and paid a percentage of net practice
revenues (the “Proposed Arrangement”), would constitute illegal
remuneration as defined in the anti-kickback statute, §1128B(b) of
the Social Security Act (the “Act”). . . .
– Based on the information provided, we conclude that the Proposed
Arrangement may constitute prohibited remuneration under
§1128B(b) of the Act.
Utilization Regulation
• Comparative x-rays (N.C.)
• Repeat examinations (HI)
• Treating spouses
– State Farm v. Dalton (p. 45)
• Liability for Billing Error
– Baxter (3 year suspension)
Confidentiality
• Release authorizations
– Requirements vary from state to state
• Subpoenas
– Sarphie v. Rowe (List of Patients) (p.47)
Program Exclusion
• Gill v. Director
– DC treated patient in hospital without
consulting with surgeon
– Agreed to 30 day suspension, $1,000 fine
– Worker’s comp issued order to exclude Dr.
Gill for one year
– Dr. Gill appealed successfully