MED MAL REFORM LAW IOWA

Iowa joined a number of states that have enacted medical malpractice reform legislation.   The reforms implemented by Iowa are a cap on non-enconomic damages of $250,000. per occurrence and a requirement that a “certificate of merit” from an expert witness be provided by Plaintiff within 60 days of filing attesting to a breach of the standard of care.  There is an exception to the cap if a jury determines that there was a “substantial or permanent loss or impairment of bodily function, substantial disfigurement, or death”.

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THE PROVIDER AS WITNESS Testifying in the courtroom

Courtroom demeanor is very important.   Testifying from a witness stand is a very unusual sensation, particularly in front of a 12 person jury.   The witness stand is small and isolated compared to the rest of the furniture in the Courtroom.  The Judge is often behind you and not where you can see her without awkwardly turning and looking back.  Counsel will be shooting questions at you from several yards away and the jurors will look like they are watching a ping pong match as their heads swivel back and forth with each question and answer.   There are a few, basic rules the witness should remember when in this situation.   Never interrupt or argue with the Judge.  If the judge speaks, you must stop speaking and listen.   You must then use your best efforts to do as she has instructed.  If she tells you to stop interrupting Counsel, then stop interrupting counsel.  It is their courtroom and they set the decorum.  On the issue of interrupting or speaking over people in the Courtroom, the jury must hear what is being said to fully grasp and evaluate the testimony.  Let the questionnaire finish the question before you begin your answer.  In fact, let a second or two go by between question and answer so that you can respond succinctly and to the point.  Try to look at the person asking the question and, when answering, shift your focus to the jury (not artificially but in a natural, conversational manner.)       When your testimony is completed, wait to be discharged by the Judge and walk appropriately by the jury and attorneys trying to avoid facial expressions or hand gestures as you go by.

These are just a few of the issues for a witness to consider and the process can consume many hours of trial preparation. But if you adhere to some general guidelines, the substantive prep will go much smoother.

DOJ settles whistle blower/false claims allegations against Indiana U. Health & Healthnet for $18 Million

In the release, DOJ stated: “The settlement resolves a law suit filed in federal court in Indianapolis, Indiana under the qui tam provisions of the False Claims Act, which permit private individuals to bring a law suit on behalf of the United States for false claims and to share in any recovery.  The law suit was filed by Dr.  Judith Robinson, who formerly held a number of positions at both Methodist Hospital and HealthNet.  Under the settlement, Dr. Robinson will receive approximately $2.8 million out of the federal share of the recovery.”    The Anti-Kickback statute prohibits the payment of any financial benefits to induce referral of patients.  In this matter, the allegations were that Indiana University Health provided Healthnet with an interest free line of credit with the intent of inducing Healthnet to refer OB/GYN patients to IU Health’s Methodist Hospital.

 

Senate Bill would limit Opioid Prescribing

Republican Senator John McCain and Democratic Senator Kirsten Gillibrand introduced a bill aimed at controlling the prescribing of opioids by limiting a doctor’s use of opioids in patient care.  The bill would limit the initial prescription of opioids in the treatment of acute onset pain to 7 days.    Exempted from the bill are prescriptions related to treatment for chronic pain; cancer care; end of life care; and palliative care.  Acute care is defined as : pain with abrupt onset and caused by an injury or other process that is not ongoing.

Whistleblower/Kickback Settlement Reported by Justice Department against Hospice Provider

Hospice Companies To Pay $12.2 Million To Settle Kickback Claims

DALLAS – International Tutoring Services, LLC, f/k/a International Tutoring Services, Inc., and d/b/a Hospice Plus; Goodwin Hospice, LLC; Phoenix Hospice, LP; Hospice Plus, L.P.; and Curo Health Services, LLC f/k/a Curo Health Services, Inc. have agreed to pay $12.21 million to resolve allegations that they violated the False Claims Act by paying kickbacks in exchange for patient referrals, announced U.S. Attorney John Parker of the Northern District of Texas. Curo Health Services is headquartered in Mooresville, North Carolina and operates eight hospice affiliates across 18 states. In September 2010, Curo Health Services purchased Hospice Plus, Goodwin Hospice, and Phoenix Hospice, and consolidated the hospice companies under the Hospice Plus brand, which operates primarily in and around Dallas, Texas.

The settlement resolves allegations brought by several whistleblowers that Hospice Plus, Phoenix Hospice, and Goodwin Hospice submitted claims to Medicare and Texas Medicaid that were rendered false as a result of the payment of kickbacks by the hospices, its owners and employees, and others. There were two alleged kickback schemes. First, from 2007 through 2012, kickbacks were allegedly paid to American Physician Housecalls, a physician housecall company, in exchange for patient referrals to these hospice companies. The alleged kickbacks took the form of sham loans, a free equity interest in another entity, stock dividends, and free rental space. Second, from 2007 through 2014, kickbacks were allegedly paid to medical providers, including doctors and nurses as well as hospitals and long-term care facilities, in exchange for patient referrals to these hospice companies. The alleged kickbacks took the form of cash, gift cards, and other valuable items.

We will not tolerate the payment of illegal kickbacks, which unjustly drive up the cost of health care,” said U.S. Attorney Parker. “Any health care provider who seeks to profit illegally at the expense of federal beneficiaries and taxpayers will face consequences.”

The allegations resolved by this settlement were raised in two consolidated whistleblower lawsuits in Dallas, Texas. The lawsuits were filed under the qui tam provisions of the False Claims Act, which permit private individuals to sue on behalf of the government for false claims and to share in any recovery. In settling this matter, Curo Health Services did not admit any wrongdoing or liability.

In addition to reaching a settlement with these defendants, the United States also requested that the Court permit the United States to intervene in and prosecute the fraud claims against two former executives, Dr. Bryan White and Suresh Kumar. The case is captioned United States ex rel. Christopher Sean Capshaw, et al. v. Bryan K. White, et al.; Civil Action No. 3:12-cv-4457 (N.D. Tex.).

The Office of Inspector General of the U.S. Department of Health and Human Services and the FBI assisted in the investigation of this matter. The case is being handled by Assistant U.S. Attorneys Lindsey Beran and Kenneth Coffin.

The Senate confronts healthcare

The US House of Representatives passed a bill last week that is intended to repeal and replace Obamacare.   The House plan will take two or three legislative sessions to enact.  The legislation allows states to set up high risk insurance pools with the aid of federal funds and waive some of the Obamacare mandates.  Critics contend that the House bill will leave thousands of individuals uninsured who are presently insured under Obamacare.

The Senate is considering a different approach which would be completed in one session.   Senator Ted Cruz has proposed such a plan.   In a recent interview, Cruz said his approach would use the “reconciliation process” and thereby, eliminate a several phase approach.  His proposal would: allow for cross-state healthcare insurance purchases; call for medical malpractice reform legislation;  creat and encourage health savings accounts; and expand association health plans.   If the House is any indication, gaining the necessary votes for the passage of any plan will be an arduous task and the devil will be in the details.

Healthcare is once again in the forefront of the legislative process and change is inevitably coming.  The most fundamental change is that Republicans will attempt to redirect the focus of the legislation to greater control by the State governments and away from the federal government approach of the Obama plan.

THIRTY YEARS REPRESENTING HEALTH CARE PROVIDERS

REARDON LAW OFFICE, LLC

Representing Health Care Professionals and Corporations for Over Thirty Years

Dear Provider,

 For over thirty years, my firm has counseled health care professionals and corporations in relation to the legal issues confronted in their everyday lives and the provision of patient care.  We understand the complexity of the health care delivery system and the problems that can arise.  We also recognize that one problem can lead to another if that problem is not properly identified, evaluated, and resolved.  For example, employment issues can turn into licensure issues and licensure issues can turn into liability complaints.

Because of our familiarity with the practice of medicine in the twenty-first century, we help our health care clients identify, avoid, manage, and resolve conflicts which interfere with their personal lives and professional pursuits.  For example, a physician recently told me that he had left a practice and did not have tail insurance with his prior malpractice policy.  This led to questions about how he should take title to the home he and wife were purchasing.  This is just one type of legal assistance that our firm has counseled physicians on for over thirty years.

On the next pages are a list of some of the matters my firm has recently been retained to represent health care providers in litigation as well as to render advice and consultation.  We helped these providers develop legal strategies aimed at conflict avoidance, dispute resolution, and litigation management and vigorously represented the provider in Court, in mediation, in arbitration, in employment reviews, and in front of the licensing Boards.

I also serve as a mediator and arbitrator in health care matters throughout New England and have taught training programs for American Health Lawyers Association in New Orleans and Austin.  In this role, I have helped parties to resolve disputes without undergoing the time and expense involved in courtroom litigation.

If Reardon Law Office can provide any consultation or legal assistance to you or anyone in the health care community, please do not hesitate to contact our office or visit our website at http://www.reardonlawllc.com for more information.

 We are here to advocate for you.

Very truly yours,

Frank E. Reardon

REPRESENTING HEALTH CARE PROFESSIONALS AND CORPORATIONS FOR OVER THIRTY YEARS

 EMPLOYMENT

Represented a physician in his negotiation of an employment contract.

Represented solo practitioner in employment lawsuit when an employee sued for sexual misconduct.

PERSONAL PLANNING

 Represented a patient caught in a reimbursement dispute between a hospital and her health insurance company.

Represented hospital patients on a pro bono basis in legal matters that needed to be resolved due to their health conditions and was awarded a pro bono award by the American Health Lawyers Association.

Represented a new health care facility with new business setup issues.

Drafted healthcare proxy, will, and power of attorney for nurse’s ailing family member.

 REAL ESTATE

 Represented a physician in Federal District Court to have an attachment removed from her property.

 PERSONAL INJURY

Represented a nurse in a personal injury matter after she was left out of work when she was struck by a car resulting in a significant settlement.

Represented a health care club owner in a personal injury matter after her car was struck from behind and her business suffered resulting in a settlement.

 

LICENSING BOARD AND GOVERNMENT INVESTIGATIONS

 Represented a major teaching hospital in a federal administrative law appeal regarding whistleblowing allegations

Counseled a nurse who was facing disciplinary action due to missing drugs.

Counseled a physician about his licensure application where the Board was challenging the adequacy of his residency.

Represented a surgeon in relation to a Board of Registration investigation.

Represented an administrator at the Board of Registration for Nursing Home Administrators

Represented an LPN before the nursing board in a license suspension hearing following termination from employment.

Represented a researcher regarding grant awards

Represented a client at the licensing board regarding enrollment in a substance abuse program.

Represented a solo practitioner against Medicare fraud charges.

Represented a free standing laboratory after a state inspection had resulted in closure and advised the laboratory on steps to take to prevent this from happening again.

 CREDENTIALING, STAFF PRIVILEGES & PEER REVIEW

Provided consultation to a physician in a staff privileges dispute with her hospital in order to avoid disciplinary action.

Provided consultation and representation to a surgeon who was accused of unprofessional conduct in the operating room.

Counseled a senior physician about issues he was confronting at his hospital regarding interactions with hospitalists and other members of the professional staff.

 LITIGATION REPRESENTATION AND MANAGEMENT

Represented a physician at a court hearing regarding a restraining order.

Represented several health care providers in medical malpractice and employment trials.

Represented physicians and hospitals regarding notice of potential medical malpractice actions pursuant to the recently enacted Massachusetts General Law Chapter 60L.

Represented a hospital regarding court ordered production of confidential HIPAA-protected materials in a divorce proceeding.

Counseled and prepared a physician who had been subpoenaed to testify in a Superior Court action.

Counseled and represented a client who sought assistance in bringing a pending complex and stressful trial to resolution.

 DISPUTE RESOLUTION: NEGOTIATION, MEDIATION & ARBITRATION

 Served as an arbitrator in an employment dispute between a physician and a hospital.

Selected to serve as one of four faculty members by the American Health Lawyers Association to conduct three day intensive mediation training programs in New Orleans and Austin.

 REARDON LAW OFFICE, LLC

 

          

1 International Place                       75 Second Avenue
Boston, MA 02116                             Needham, MA 02494
 

Phone: 617-859-3600

Fax: 617-859-3601

 

http://www.reardonlawllc.com

freardon@reardonlawllc.com

 

 

REPRESENTING HEALTHCARE PROFESSIONALS IN BOARD OF REGISTRATION & DISCIPLINARY LICENSURE PROCEEDINGS

The attorneys of Reardon Law Office, LLC have a long tradition of representing health care professionals confronting disciplinary action from State licensing boards and healthcare administrators.

Several recent cases exemplify our representation of health care providers in disciplinary proceedings before Boards of Registration & Licensure and healthcare administrators.    The first involved allegations that our client had engaged in sexual relations with a patient in an exam room during an examination;  another involved a home health aide who allegedly signed a progress note when another aide  had actually seen the patient; a third involved allegations that a nurse had left the health care facility where she was assigned and was involved in an automobile accident while off site; and a fourth involved our clients termination as an administrator at a long term care facility following a state inspection noting deficiencies.  In each of these situations, our clients confronted both licensure allegations and serious employment discipline.

 

STATEMENTS OF ALLEGATIONS AGAINST YOUR LICENSE

Letters of potential licensure discipline from a Board of Registration sets in motion a very specific review process with strict requirements for responding to the allegations in a strict time frame.  During this short time frame, a strategy must be developed about your best defense to the charges and this defense must then be set forth in your response to the Board. The outcome of your case will be dramatically impacted by this response so it is important that you get legal advice as soon as possible.   The advice should be sought from an attorney who is familiar with the legal standards governing the board’s review and what the ensuing process will entail.   To assist with that process, any documentation should be gathered together and provided to counsel.  You should also be certain that you only discuss the matter in a confidential relationship.  For the most part, in Massachusetts and Rhode Island, the only privileged conversations will take place with your attorney or your spouse.  If you want to have other conversations, you should seek the approval of your attorney.

 

WILL YOU EMPLOYMENT BE AFFECTED BY THE ALLEGATIONS

A second consideration is how the allegations will affect your employment or privileges.   A report to the licensing Board may trigger an internal investigation if one has not already been started.  This can often be as significant to you as the licensing board complaint as this may directly affect your ability to earn an income while the matter is under review.  In the face of a licensing board complaint, a combined strategy addressing both licensure and employment concerns must be developed.  Again, it is important that whomever you seek counsel from should have knowledge of the laws, rules and regulations relating to your professional status as well as familiarity with the personnel or professional staff by laws at the facility where you practice.     Before you sign your reply to the licensing board, the reply must be satisfactory from both a professional licensure and an employment perspective.

Time is of the essence in this process.   You should be candid with your attorney so that the reply is as strategic and thorough as possible.  You should seek assistance from the outset so that an approach can be decided upon which will guide all of your interactions going forward.