|
 Buckingham,
Doolittle & Burroughs, LLP is pleased to
announce the appointment of
Christopher Humphrey, a Shareholder
resident in the firm’s Canton office, to Chairman of the
Health & Medicine practice group. Mr. Humphrey
assumed the role of Chairman on December 1, 2005.
President and CEO Nick George said, “We are fortunate to
have Chris’ leadership. He has excellent legal skills, a
strong focus on the welfare of his clients and dedication
to the legal profession.”
Click to view the
Press Release.
By:
Thomas Himmelspach
 On
August 18, 2005, the Sixth Circuit Court of Appeals ruled
that state law damage caps on medical negligence actions
do not violate the Seventh Amendment or the Equal
Protection Clause. In Andrea Smith v. Botsford General
Hospital,
the court considered whether Michigan’s cap on
non-economic damages in medical negligence cases applied
to plaintiff’s wrongful death claim.
In
Smith, plaintiff alleged that a hospital violated the
Emergency Medical Treatment and Active Labor Act (“EMTALA”)
by failing to stabilize decedent, Kelly Smith, before
transferring him to a different hospital for treatment of
a compound fracture of the femur in an auto accident. The
hospital, Botsford General, defended the claim, arguing
that it transferred Kelly Smith because it was unequipped
to handle a patient of his size, over 600 pounds. Botsford
contended it had stabilized Smith before the transfer, but
that he died during the 21-minute trip to the second
hospital due to complications from his weight and cocaine
intoxication.
The jury
returned a verdict for plaintiff and awarded $35,000 in
compensatory damages and $5 million in non-economic
damages, and the district court entered judgment on the
verdict. Botsford appealed, arguing that the damages
should be reduced in accordance with a Michigan law cap on
medical malpractice damages. Under Mich. Comp. Laws Sec.
600.1483, non-economic damages in medical negligence cases
are capped at $359,000.
Plaintiff
argued first that EMTALA does not incorporate state law
damage caps under any circumstances. The court rejected
that argument, citing the language of EMTALA that the Act
authorizes any individual who suffers harm from a
violation of the Act to “obtain those damages available
for personal injury under the law of the State in which
the hospital is located….”
The court concluded that based on the statute, State law
could control EMTALA damages, and announced that it joined
“the majority of courts addressing the issue in finding
that EMTALA’s incorporation of state law extends to caps
on damages.”
The court
examined whether the Michigan law applied to the EMTALA
claim, i.e., whether a failure-to-stabilize claim is a
medical malpractice claim under Michigan law. It cited the
decision in Bryant v. Oakpointe Villa Nursing Ctr.,
where the court defined a medical malpractice case as
one involving resolution of two questions: (1) whether the
claim pertains to an action that occurred within the
course of a professional relationship; and (2) whether the
claim raises questions of medical judgment beyond the
realm of common knowledge and experience. The court
concluded it had no difficulty finding that the EMTALA
failure-to-stabilize claim constitutes a malpractice
action under Michigan law, under the Bryant test.
Accordingly, it capped the damages at $359,000.
Finally,
plaintiff argued that the cap was unconstitutional in
violation of the Seventh Amendment and the Equal
Protection Clause. Following the decision in Boyd v.
Bulala,
the court rejected the challenge under the Seventh
Amendment. It noted that the jury’s role as fact finder is
“to determine the extent of a plaintiff’s injuries,” and
not “to determine the legal consequences of its factual
findings.” Accordingly, the court concluded that the
Michigan law damage cap did not violate any protected jury
rights and did not offend the Seventh Amendment.
It also
rejected the challenge under the Equal Protection Clause,
reasoning that a limitation on common law damages “does
not violate a fundamental right or create a suspect
classification,” but, rather, is “a classic example of an
economic regulation” which is “subject only to a limited
rational basis review.” The test, therefore, was whether
the Michigan law rationally furthered a legitimate
governmental interest. The court cited Zdrojewski v.
Murphy,
that:
“The purpose of the damage limitation was to control
increased health care costs by reducing the liability of
medical care providers, thereby reducing malpractice
insurance premiums, a large component of health care
costs. Controlling health care costs is a legitimate
governmental purpose. By limiting at least one component
of health care costs, the noneconomic damage limitation is
rationally related to its intended purpose.”
The Sixth Circuit concluded that the Michigan damage cap
was rationally related to a legitimate governmental
interest and, therefore, did not violate plaintiff’s
rights under the equal protection clause.
______________________________
Thomas Himmelspach
is a Partner of the Health & Medicine Practice Group.
He can be contacted at
thimmelspach@bdblaw.com
or
330.491.5284.
By:
Susan Rank
 Ohio
law sets forth maximum fees that doctors can charge for
providing medical records. The previous law, which was in
effect since March 22, 2001, was changed by the 125th
General Assembly, made effective on December 21, 2004.
Substitute House Bill 331 changed the old medical copy
law, extending the law governing fees for copies of
medical records. The new law changed the fees that health
care providers and medical records companies may charge
for copies and changed who may receive one free copy of
the patient’s medical record. The following provides
highlights of the new law.
If the patient or patient’s
representative requests the patient’s medical records, the
following fees apply:
Search
Fee
No charge
Paper
Records
$2.50 for the first 10 pages
$0.51 for pages 11 – 50
$0.20 for pages 51 +
Postage
Fee
Actual postage, if mailed
Non-paper
Records
$1.70 per page
If anyone other than the patient or
patient’s representative requests the records, the
following fees apply:
Search
Fee
$15.35
Paper
Records
$1.02 for the first 10 pages
$0.51 for pages 11 – 50
$0.20 for pages 51 +
Postage
Fee
Actual postage, if mailed
Non-paper
Records
$1.70 per page
Additionally, one
free copy of the patient’s medical record must be
provided, upon request, to the following: Ohio Bureau of
Workers’ Compensation, Ohio Industrial Commission, Ohio
Department of Job and Family Services, Ohio Attorney
General’s Office, and to the patient or patient’s
representative for Social Security Disability Claims,
pursuant to Ohio Revised Code 3701.741(C).
Finally, the law
allows for adjustment of the fees, based on the average
percentage of increase or decrease in the consumer price
index for all urban consumers (United States city
average), prepared by the U.S. Department of Labor on a
yearly basis.
If you would like a free copy of the law, go to
www.legislature.state.oh.us and enter Bill Number 331.
______________________________
Susan Rank
is an Associate of the Employment &
Workers' Compensation and Health & Medicine Practice Groups.
She can be contacted at
srank@bdblaw.com
or
330.491.5247.
 By
Thomas Hess
When Congress created the Medicare program in 1965, it
said the law “shall not be construed to authorize any
Federal officer or employee to exercise any supervision or
control over the practice of medicine or the manner in
which medical services are provided....”
As we know, Congress has not followed its original
pronouncement. The healthcare industry is one of
America’s most regulated industries, and creates budget
issues at both the federal and state levels. Regulations
governing provider conduct are promulgated weekly, which
make it difficult for the provider to address patient
needs and deliver appropriate, necessary, and reasonable
care.
A panel of healthcare experts was asked recently what will
be the top 10 issues in 2006. According to the panel, the
top 10 issues will be:
1.
“Fraud and Abuse” because controlling healthcare
costs is the government’s number one concern.
2.
Medicare and all of the new programs created by the
Medicare Prescription Drug Improvement and Modernization
Act of 2003.
3.
Health information technology and the necessity to
ensure privacy and security.
4.
Legislative oversight in regulatory enforcement
involving both exempt and full-profit healthcare
organizations.
5.
Medicaid because of its impact on state budgets.
6.
“Quality of care” as interpreted by the provider,
the payor and the recipient – all of who have different
interpretations.
7.
An increase in provider regulation and oversight to
ensure compliance with standards associated with the
delivery of healthcare services.
8.
FTC enforcement of anti-trust laws focusing on
physician organizations, hospital mergers and other
consolidations.
9.
An increased focus on healthcare plan regulation
and what impact the Part D program and changes to Part C,
Medicare Advantage, will have upon Medicare beneficiaries.
10.
The impact natural disasters and bioterrorism will
have upon public health.
As you can see, healthcare providers face another year of
challenges. As a provider, you should expect more
oversight and more accountability. Hopefully, the
challenges will not make it more difficult to deliver
appropriate, necessary, and reasonable healthcare
services.
By
Thomas Hess
Now that 2005 has
ended, it is important to start the new year with a review
of both the accomplishments of the past year and the tasks
to be performed during 2006. Planning for 2006 will
involve considering more than just corporate, financial
and tax issues.
The following
checklist offers items you should consider when planning
for the upcoming year. Specifically, consider whether an
item should be updated, amended, or modified to meet the
present and future needs of your company or organization.
v
Business advisors
List your accountant,
insurance representative, business manager, bank or
banker, and legal counsel. Does your company work well
with each of these business advisors? Do the business
advisors timely respond to your questions and other
matters? Do you have the correct contact information for
each business advisor listed?
v
Corporate record concerns
Determine whether the
corporate record or minute book is up-to-date. Must any
actions be taken to bring the record or minute book
up-to-date? Have all major company actions been recorded
in the record or minute book? Are all documents in the
record or minute book signed by the appropriate parties?
Are there any matters that have not yet been completed?
v
Employee matters
What is the date of
last review for the Employee Handbook? Does the Employee
Handbook need to be revised to include new policies?
Is the company in
compliance with federal, state, county and city
governmental law regarding payroll and withholding tax
(including workers’ compensation and unemployment
compensation)? Is the company in compliance with minimum
wage laws?
Do any employees need
a new or modified employment agreement? Are there any
negotiations or plans for negotiation of any employment
agreements?
Review bonus and
incentive arrangements for the upcoming year. Review
employee benefit plans for the upcoming year. Do the
benefits plans meet the needs of your employees?
v
Loss of key employees
What effect would the
death, disability, retirement or resignation of a key
employee have on company operations? What provisions or
plans are in place to maintain operations if the company
loses one or more key employees?
v
Litigation
Are there any
lawsuits pending against the company? If so, what is the
status of the litigation? Is there any litigation
initiated or to be initiated by the company? If so, what
is the timetable and who needs to be involved?
v
Audits
Are there any audits,
financial or governmental, planned for the upcoming year?
If so, when will the audits take place? Who needs to be
involved?
v
Intellectual property
Are any trademarks,
service marks, patents, fictitious names or trade name
registrations required?
v
Business agreements
List all contracts
and agreements currently executed. Which contracts and
agreements will expire in the upcoming year? Which
contracts and agreements will automatically renew? Does
the company wish to terminate, renew or modify any
contracts or agreements? Does the company have any leases
that need to be reviewed?
v
Record retention and disposition
Does your company or
organization have a policy concerning record retention and
disposition? If so, does the policy need to be updated?
After reviewing these
items, prioritize the matters that the company needs to
address, and contact the appropriate business advisor for
any necessary assistance. Because this list is not
complete, always consult with the company’s business
advisors to ensure successful business operations in the
upcoming year.
This article was adapted from a Business Review
Checklist developed by Thomas W. Hess, Esq., Buckingham
Columbus.
______________________________
Thomas Hess
is a Shareholder of the Health & Medicine Practice Group.
He can be contacted at
thess@bdblaw.com or
614.227.4260.
|
|
|
Joe Feltes is a member of
the Health & Medicine Group, has been practicing
health law for nearly 29 years, representing a wide
variety of clients, including hospitals, physicians,
managed care organizations, durable medical goods
suppliers, and allied practitioners. He is a
Shareholder resident in the firm’s Canton office.
Joe’s practice focuses on both the
corporate practice of health law and litigation. He
advises clients in regulatory compliance, contracting,
and Medical Staff issues. He also defends health care
providers in civil litigation, as well as in
governmental investigations and enforcement actions.
“This is a practice area that is
constantly evolving and reinventing itself in response
to changes in the dynamic field of health,” Joe
explains. “When I first began practicing, much of my
attention had been on Certificate of Need. Now, I
spend my time wrestling with Stark II and the
anti-kickback provisions of the Social Security Act.
“One positive note is the attention
paid to quality in healthcare. Many of the laws are
aimed at improving quality of care, assuring access,
and ensuring proper reimbursement. The challenge is to
understand the parameters of these laws and advise
clients how to operate successfully within them.
Prior to graduating from Georgetown
University Law Center, Joe taught dramatic literature
and writing at the University of Pittsburgh, which he
claims was a natural transition to practicing law.
“Being an effective attorney requires good
communication skills—written and verbal. It also is
important to stress the importance of communication to
clients. I believe that many lawsuits result when
communication breaks down. Good communication often
deters litigation. For me, the same skills that are
required to explain Chaucer to a class of students can
be used to explain a legal concept at a medical staff
meeting, or to a jury.”
Joe recently published an article on
Ohio’s “I’m Sorry” law. This law allows physicians to
say to a patient or family, “I’m sorry for your loss,”
when an untoward clinical outcome occurs – without the
statement’s being used as an admission against
interest. “It is my belief,” Joe says, “that many
malpractice lawsuits arise, not so much out of greed
as out of anger, when the patient or family believes
that the provider does not care. The “I’m Sorry” law
allows physicians to express condolences in an
appropriate way.”
Joe feels that his healthcare practice
is distinctive because he advises and litigates. “A
lot of really good healthcare lawyers focus just on
the corporate side of the law. I also have a
background in litigation. Consequently, I always begin
my analysis with the courtroom in mind. I ask myself
two questions: ’How do we avoid the court room?’ and
if we wind up there, ‘How would this play in front of
a jury?’”
In his spare time, Joe enjoys the
company of his two sons. He is a passionate adventure
traveler. Recent trips have taken him to base camp of
Mount Everest in Tibet, to the summit of Mount
Kilimanjaro in Tanzania, and to Machu Picchu in Peru
where he trekked the Inca Trail. Joe’s next trip will
be a sea kayaking adventure in Antarctica.
|
HIPAA Three
Year Notice Obligation Quickly Approaching
When the HIPAA Privacy Rule went into effect, each covered
health plan was required to distribute its privacy
practices notice to each of its enrollees by its Privacy
Rule compliance date (April 14, 2003 for most health
plans; April 14, 2004 for small health plans). The notice
requirement, however, did not end there. Thereafter, each
health plan was required to give notice to each new
enrollee at enrollment, and send a reminder to every
enrollee at least once every three years that the notice
is available upon request.
Well, believe it or not,
it has been three years since the HIPAA Privacy Rule went
into effect and it is now time for most covered health
plans to notify all individuals presently covered by the
plan of the availability of its notice of privacy
practices, and the method of obtaining such notice. Most
health plans must provide this notice by April 14, 2006.
(Small health care plans will have until April 14, 2007).
If you have any questions or concerns regarding this
requirement, contact
Shila Nalawadi.
____________________________________
CMS Adds Nuclear Medicine to
Stark List of Designated Health Services
Beginning January 2007, CMS will add nuclear medicine
services and supplies to the list of designated health
services subject to Stark.
CMS added nuclear medicine services to the designated
health list as part of an attempt to curb the dramatic
increase in the number of medical scans ordered by
physicians at imaging centers that they have a financial
interest in outside of their main practice.
The addition of nuclear medicine to Stark means physicians
and hospitals that bought nuclear cameras and set up
imaging centers together will no longer be able to refer
federally insured patients there unless they sell their
share in the centers, or the arrangement fits under a
Stark exception. CMS originally proposed prohibiting
nuclear medicine referrals in 2006, but moved back the
date to 2007 in order for providers to restructure
existing arrangements to fit under a Stark exception.
If you have questions or concerns regarding this change or
need help restructuring an existing nuclear services
arrangement, please contact
Don Antrim or
Joe Feltes.
____________________________________
New CMS Requirements Lay out
Roles and Responsibilities for Medical Directors
Providers really cannot win when it comes to hiring a
medical director. On one hand, the OIG is scrutinizing
payments to medical directors to ensure they are not
kickbacks for referrals. On the other hand, CMS
Transmittal 15, published November 28, 2005, now requires
facilities to hire medical directors.
In addition to requiring facilities to hire medical
directors, the Transmittal lays out in detail the roles
and responsibilities CMS expects medical directors to
fulfill. It also requires compliance officers to document
medical director activities. Providers must act quickly
though, because this Transmittal went into effect on
November 25, 2005. For a copy of Transmittal 15, visit
http://www.amda.com/federalaffairs/ftag/Final%20Version%20F501.pdf.
OFFICE OF INSPECTOR
GENERAL UPDATES
OIG Draft Compliance Program
Guidance for Federal Grant Awardees
On November 28, 2006, the Office of the Inspector General
(“OIG”) posted a draft of its Compliance Program Guidance
for Recipients of PHS Research Awards on its website,
giving researchers a heads-up on what they should do to
catch fraud and abuse. Although the guidance was written
specifically for federally funded researchers, it
highlights major risk areas and should be read by all
providers who do research, who receive grants, or whose
patients participate in studies.
The guidance is similar to other
compliance guidance published by OIG, but it goes one step
further. In addition to the seven standard elements of
compliance,
OIG adds an eighth element requiring researchers to
clearly define roles and responsibilities and to assign
oversight duties to specific individuals.
This eighth element places higher
accountability on all employees, and makes all employees
responsible for compliance, not just the compliance
officer. Providers can easily designate compliance
responsibility by doing the following: (1) including a
paragraph in each person’s job description that requires
them to comply with all the rules; (2) following up with
each employee during annual reviews to ensure they upheld
their compliance responsibilities; and (3) establishing a
chain of command in which each supervisor certifies that
the billing and reporting statements of the person below
him are true and accurate.
For a copy of the Draft OIG Compliance Program Guidance
for Recipients of PHS Research Awards, visit the OIG Web
Site at
http://oig.hhs.gov/fraud/complianceguidance.html.
____________________________________
OIG Allows Joint Venture Even
Though Owners are Referral Sources
In OIG Advisory Opinion 05-12, the OIG gave a group of
psychiatrists the green light to establish a day treatment
facility even though they are all potential referral
sources, and the fraud risk is “especially high.”
The OIG
approved the arrangement because of the following
safeguards:
ú
The patient mix minimizes the risk that the
government will pay for inappropriate services or
referrals (very few patients will be federally insured).
ú
Each psychiatrist will pay an equal amount
to create the facility, and they will each receive money
back in proportion to how much they invested.
ú
Referrals from each psychiatrist will be
confidential.
ú
Payment for services the psychiatrists and
other clinicians provide the facility will be based on
fair market value.
ú
Each psychiatrist will maintain an outside
practice that competes with the others, making it unlikely
that they will refer to each other.
ú
About 95% of patients will be referred by
outside clinicians who have no financial interest in the
facility.
ú
Patients referred by an owner will be
evaluated by a third party to determine medical necessity.
For a copy of OIG Advisory Opinion 05-12 visit
http://oig.hhs.gov/fraud/docs/advisoryopinions/2005/ao0512.pdf
 Joe Feltes,
Buckingham
CantonSM,
wrote an article entitled, "I'm Sorry -- A Prescription
for Preventing Malpractice Suits." The article discusses the
physician-patient relationship, and how litigation may be avoided
if the physician takes the time to show compassion and concern
when things just do not turn out right.
_______________________________
_______________________________
Save the Date for these Upcoming Presentations:
January 28 -
Christopher Humphrey,
Buckingham CantonSM,
will be speaking at a seminar sponsored by Guidant
Corporation regarding "Medical
Records Documentation."
February -
Stephen Griffin,
Buckingham CantonSM,
will be addressing the medical staff of The
Ohio State University Medical Center on the topic of
"The Malpractice Experience"
March 14 -
Thomas
Hess,
Buckingham
ColumbusSM,
will be speaking at a Lorman Education Services seminar in
Independence, Ohio. His topic will be "How to Survive a
Government Audit."
Out and About – Recent Presentations:
David Abromowitz,
and
Priya Bathija,
Buckingham
ColumbusSM,
spoke to the Akron General Hospital Center for Family
Medicine. Their topic was
"Physician Contracts."
_______________________________
G.
Brenda Coey,
Buckingham CantonSM,
made a presentation on "Legal
Documentation."
_______________________________
Thomas
Hess,
Buckingham
ColumbusSM,
presented at an Ohio Health Care Association seminar.
His topic was "Advance
Directive."
_______________________________
Richard Milligan,
Buckingham
CantonSM,
presented at the AultCare Provider Physicians Conference.
The titles of his presentations were
"Tort Reform - Is it Making a
Difference?" and
"Understanding and Avoiding Medical
Malpractice Risk." Mr. Milligan also
spoke to the Akron-Canton Chapter of the Association of
Perioperative Registered Nurses (AORN). His topic
was "Under Attack: Your
Documentation on Trial."
_______________________________
If you are interested in obtaining information on
upcoming seminars or would be interested in having
speakers from BDB make a presentation to your
organization, please contact: Lorna J. Henderson, Client
Relations Administrator, at
800.686.2825 ext. 86473
or
lhenderson@bdblaw.com.
|
