Medical Justice® aggressively addresses the interest of doctors within the changing landscape of medical practice. Our mission; to protect our members' most important assets - reputation, character and integrity - against frivolous medical malpractice lawsuits, Internet defamation and unwarranted demands for refunds.



Jul 25 2014

Prescribing opioids – Navigating the minefields

Published by under Healthcare Reform

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

Treating patients in pain with opioids creates serious legal quandaries for doctors.

A 2010 study (based on the American Society of Anesthesiologists Closed Claims Database) found that malpractice claims related to chronic non-cancer pain management primarily involved patients with a history of risk behaviors.

The study also found that death was the most common trigger of these claims.

Prescribing opioids causes a conflict. No doctor wants to undertreat the patient in pain. No doctor one wants the excess liability created by patients who are addicts, criminals, or a complex mishmash of unrelenting pain issues and co-morbidities.

On the other hand, that study also found that 59% of claims were grounded in physician mismanagement, either on its own or compounding a patient risk factor.

 

This means doctors still control the legal destiny of these cases. Steps can be taken to reduce the physician’s risk of being prosecuted as a “pill mill” or being held responsible for the dangerous or felonious use of the medication by the patient.

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2 responses so far

Jul 11 2014

Not on call. Just finished a large glass of wine. The ER calls. What to do?

Published by under Healthcare Reform

Most physicians wake up every day intending to do the best possible job and help their patients. They work long hours, sacrifice a normal family life, and don’t always receive a thank-you note.

 

Digest the following hypothetical.

 

You and your partner are the only neurosurgeons for a small community of 50,000 people. The draw area is larger, say 250,000. The closest major metro area is 80 miles away. And that city has a medical school, teaching hospitals, and full service trauma treatment.

 

You and your partner alternate call for both the practice and the ER.

 

Your partner is on call.

 

You’ve had a long week, and are ready to kick back. In anticipation of the weekend, you just finished a large glass of Cabernet. Yum.

 

The ER calls and you pick up the phone. You didn’t have to. But you did.

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26 responses so far

Jul 04 2014

Agreements to allow a doctor to respond to a patient’s untruthful online post.

Published by under Healthcare Reform

Recently, a doctor asked our thoughts on whether his standard HIPAA Notices of Privacy Practices could be amended to allow him to disclose protected health information online “to set the record straight.”

 

His goal was not to debate a patient’s opinion. Rather, he wanted to be able to refute factually inaccurate online statements without having to resort to a defamation lawsuit to achieve that goal.

 

HIPAA and state privacy laws are rather strict. Unless a particular fact pattern falls into a defined exception, HIPAA and state privacy laws do NOT allow for release of protected health information unless the patient provides explicit permission. Correcting a factually inaccurate online statement does not fall under such an exception. Doctors who cavalierly respond and “set the record straight” by revealing protected health information without such permission are engaging in a high risk activity.

 

So, back to the original question. Can an agreement be penned which preemptively grants the doctor permission to respond to fictional posts?

 

Perhaps. But, there are a number of caveats.

 

First, HIPAA Notice of Privacy Practices is not really an agreement, per se. It is a disclosure of what a practice must do to conform to HIPAA. In contrast, an agreement is a two-sided meeting of the minds. Each side gives. Each side gets. So, if the doctor wants the patient to provide permission to respond online, it probably needs to be separate from the standard HIPAA Notice of Privacy Practices.

 

Next, an agreement (a contract) must have certain elements to be enforceable. It must contain “consideration.” Each side must get something out of the deal. An agreement which only allows the doctor to respond in public would not, on the surface, provide the patient with any additional benefit. One potential benefit which might sidestep this shortcoming would be for the doctor to waive his right to sue for defamation. If such consideration is embedded into an agreement, the doctor would use the public forum as his full and total remedy for a fictional post. The doctor would be waiving his right to sue. This, arguably, is a tangible benefit to the patient.

 

There are other details that need attention for an agreement to be enforceable. It cannot be unconscionable. The patient would need to be fully aware of the terms. Burying such a term in tiny print legalese would not pass the sniff test. Drawing attention to the terms in bold print within a separate document would get closer to passing that test.

 

Next, the agreement must comport with the law. The HIPAA statute allows a patient to withdraw consent previously provided to release protected health information. So, a patient might give consent today, have a procedure done, and then withdraw that consent a week later. If that happens, the doctor would have to honor the patient’s request. He would not be able to respond publicly.

 

What if the patient withdraws consent after the doctor has already responded publicly to a fictional post? This is a bit trickier. Certainly, the doctor would be foreclosed from responding further. Arguably, the doctor would also be obliged to remove his response, if it were feasible and practical. Of course, it’s hard to put the toothpaste back in the tube. If a response goes up on a site whose written policy is to make such posts permanent, then you have no practical way to remove that response. But, if you have the means to remove the response to the post, you likely will have to – to conform to HIPAA.

 

Next, what happens if you are not 100% sure the patient posted the review with factual misstatements. You would want to err on the side of caution. A patient’s family member or friend might have penned the post. If so, you would not have the patient’s permission to respond.

 

Finally, what about the details of a response? HIPAA states that if protected health information is disclosed, the least amount of information should be disclosed to address the stated goal. So, if patient alleges online she developed a post-op infection, and the facts are that the patient had an allergic reaction to adhesive tape, then that pithy nugget is all that could be disclosed. Additional facts, such as the patient having a history of alcohol abuse and a borderline personality disorder, for example, could not be posted.

 

This analysis is a long-winded way of stating that such an agreement might be challenging to enforce; and, if used, would need to be used cautiously. That said, there should be better ways to set the record straight than having to file a lawsuit. If a doctor wants clarity in whether such a pioneering agreement complies with HIPAA, the best way to achieve that certainty is to ask HHS directly. Remember, pioneers take the arrows.

9 responses so far

Jun 27 2014

Can a Board of Medicine Discipline a Doctor for Participating in State Sanctioned Execution?

Published by under Healthcare Reform

Botched executions are in the news again.

 

The vast majority of states that allow for state sanctioned death penalty perform the execution via a three drug protocol.

 

The first drug is an anesthetic – such as propofol or a barbiturate.

 

The second drug is a neuromuscular paralytic agent.

 

The final drug is designed to stop the inmate’s heart (typically a solution of KCl).

 

If an inmate is not properly anesthetized, the second and third drugs cause conscious suffocation and intractable pain. States do not dispute the argument that an unanesthetized inmate exposed only to the second and third drugs in the three drug protocol would constitute Cruel and Unusual Punishment under the 8th Amendment.

 

Accordingly, lawyers for death row inmates have taken the position that states using the three drug protocol must employ the services of trained medical personnel for anesthesia. If states do not want to use the three drug protocol, the lawyers argue, they must use a different protocol.

 

The American Medical Association and the American Society of Anesthesiologists embrace the position that physician participation in state sanctioned executions is unethical. Even the Society of Correctional Physicians have opined the “the correctional health professional shall … not be involved in any aspect of execution of the death penalty.” The most a voluntary professional organizations could do to enforce its code of ethics would be to sanction the doctor. But, the doctor would still have a license to practice medicine.

 

Some anti-death penalty advocates have pushed various Boards of Medicine to discipline doctors who participate in executions. If these advocates had succeeded, participating doctors could have lost their license and be unable to practice medicine. In 2005, Dr. Arthur Zitrin filed a claim with the Georgia State Board of Composite Examiners. The Board refused to open an investigation. Zitrin then sued in state court, seeking a declaratory judgment that Georgia prohibit physicians from participating in public executions. The trial judge shut the case down quickly. He asked the attorney for Dr. Zitrin:”How many Georgia physicians belong to the AMA? I’d say less than a half. And you want to incorporate an ethical opinion from the AMA into Georgia law?” The case was appealed and the outcome was affirmed. The result “guarantee[d] that no physician [in Georgia] will be subject to disciplinary proceedings as a result of his or her participation in an execution.”

 

In California, state law authorized physician participation in executions. Nonetheless, in 1996, a group of doctors sued the state hoping for a declaration that physicians participating in such executions lose their licenses under state law. The appellate court ruled against the anti-death penalty advocates. It noted “surely the Legislature could not have expressly and implicitly provided for physician involvement in executions, and simultaneously subjected participating physicians to discipline or other legal sanctions from engaging in lawful conduct.’

 

 

Finally, the North Carolina Medical Board pre-emptively expressed a will to discipline doctors involved in executions. It issued a statement in 2007 warning such doctors may be the subject of disciplinary action. The Department of Corrections sued and the case percolated to the North Carolina Supreme Court. State law required physicians participate in such executions. The Supreme Court noted that the state legislature wrote both the state death penalty law and the Medical Practice Act which created the Medical Board. “To allow [the Medical Board] to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.”

 

In state courts which have addressed the issue, the outcome has been consistent. If healthcare personnel are mandated by law to oversee state sanctioned executions, the State Medical Board is not empowered to discipline the doctor for mere participation.

Some state legislatures have gone one step further, not leaving the issue to judicial interpretation. Some states have created “safe harbors” explicitly preventing the state Medical Board from sanctioning doctors who participate in executions. Illinois was among the first states to grant this immunity to physicians. The legislature enacted the shield law in response to a complaint asking the Illinois Medical Board discipline those doctors willing to participate in the execution of John Wayne Gacy, the mass murderer. Gacy lured victims to his house by force or deception and murdered by either asphyxiation / strangulation with a tourniquet. Gacy buried 26 of his victims in the crawl space of his home. Gacy became known as the “Killer Clown” due to his charitable services at fundraising events, parades and children’s parties where he would dress as “Pogo the Clown.”

Doctors have given various reasons for participating. And such doctors believe their actions conform to general medical ethical principles. One doctor, Dr. Carlo Musso, says he feels an obligation not to abandon inmates in the final moments of life. He explained,”[T]his is an end-of-life issue, just as with any other terminal disease. It just happens that it involves a legal process instead of a medical process. [A death penalty] patient is no different from a patient dying of cancer – except his cancer is a court order.”

Dr. Kenneth Baum noted: “Condemned death row inmates are, for all practical purposes, terminally ill patients, albeit under a nontraditional definition of the term, and deserve to be treated as such.” He continued, “[t]o desert these individuals in their most vulnerable hour would be antithetical to the beneficent ideals of medical practice.”

In sum, if state law mandates a doctor participate in executions, the state Board of Medicine generally cannot discipline a doctor for following the law. More detailed discussion of this issue can be found in an excellent review article by Ty Alper: The Role of State Medical Boards in Regulating Participating in Executions

5 responses so far

Jun 20 2014

Consent to Use Before and After Photos. Lessons from a Multi-Million Dollar Lawsuit

Published by under Healthcare Reform

Summary judgment was granted on June 10th to plaintiff Catherine Manzione in a multi-million dollar lawsuit.

 

That means the plaintiff won without even having to present her case to the jury. The judge granted the motion noting there are no disagreements on the facts of the case. In that circumstance, the judge merely needs to apply the law to the agreed upon facts.

 

Here’s what the dispute is about:

 

In January, 2011, Ms. Manzione had an elective cosmetic rhinoplasty performed by Dr. Mashkevich. Prior to the surgery, the patient signed a “Photographic Release and Consent” form. In that form, the patient explicitly withheld her consent to use any before or after photos in an advertisement or web publishing. Specifically, the patient’s signature appeared directly below the statement:

 

“I do not want my photos to be used. I understand that the photographs will be placed in my confidential records only.”

 

At this same time, plaintiff also signed an “Authorization and Informed Consent” form which stated:

 

I give permission to Dr. Mashkevich or a staff member to take still or motion clinical photographs with the understanding that such remain the property of the doctor. If, in the judgment of the Doctor, medical research, education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”

 

In 2013, the patient discovered her before-and-after photos were posted on the doctor’s website. In June, 2013, the patient’s lawyer demanded the photos be removed. And the doctor quickly complied.

 

A lawsuit quickly followed alleging: (1) violation of the Civil Rights Law§§ 50 and 51; (2) unjust enrichment; (3) breach of fiduciary duty; (4) public disclosure of private facts about plaintiff; and (5) negligence per se for violation of: (a) Civil Rights Law§ 50; (b) HIPAA Privacy Rule; (c) CPLR § 4504(a); (d) Education Law§ 6509(9); and (e) 8 NYCRR 60.l(d).

 

That’s a mouthful.

 

New York Civil Rights Law § 50 provides that the use of the “name, portrait or picture of any living person” for “advertising [or trade] purposes” absent written consent is a misdemeanor. Civil Rights § 51 authorizes a civil action for injunctive relief and damages, including exemplary damages if a defendant acts knowingly in violation of that protection.

 

This means if you use a person’s name or picture for advertisement without written consent, you can be sued for damages. The issue in this case hinged on consent. Dr. Mashkevich argued even though there were two documents, one of the documents authorized consent to use the photos.

 

The court concluded that there were two consents. The first consent broke down the different ways photos might be used with the patient signing in the adjacent line – authorizing or denying consent for that use. This is a defendable way to obtain consent for photos in a surgeon’s practice.

 

A granular consent to use photos might include:

 

The usage of these photographs, videos and/or digital images will be limited to:

 

___Medical purposes related to case

___ Scientific purposes, including seminars and medical articles

___ Digital or printed materials for patients to view in the office(s)

___ Digital or printed materials to be included in newsletter to be sent to current or prospective patients

___ Digital images to be included in our website

___ Digital images to be uploaded to the broader Internet to be viewed by the public

 

The problem in this particular case is that the patient explicitly did not consent to the use of her pictures on the surgeon’s website.

 

As noted earlier, the broader second consent stated: “If, in the judgment of the Doctor, medical research, education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”

 

The problem here is that even if the website is arguably an educational forum, authorization to use photos is limited to publication in professional journals or medical book. The surgeon’s website is neither.

 

So, there you have it.

 

If you intend to use patient photos for any purpose, you must have the patient’s explicit (written) consent for that purpose. Further, HIPAA and HITECH allow the patient to withdraw such permission down the road. So, if a patient gives consent to use photos on your website and then rescinds that permission a year later, you are obliged to honor that request. Obviously, if the picture is disseminated in a medium that is permanent – such as book or medical journal, you cannot recall the material. But, you can make sure it is not re-published.

 

Adding additional language into a “Consent to Use Photos” may be helpful:

 

If I ask Dr. X to terminate use of these photos, videos and/or digital images, I will do so in writing and communicated to Dr. X, and recognize that it will likely take a reasonable time period to accomplish. For example, to remove such pictures from a web site, Dr. X will need to coordinate with a third party webmaster.

Further, termination of prospective use of photos, videos and/or digital images may have no effect on prior distribution- such as the case with medical journals. A published journal, for example, cannot be “recalled.”

 

By the way, the plaintiff is seeking $23 million.

10 responses so far

Jun 13 2014

Father Banned From Delivery Room: Citing Privacy Concerns

Published by under Healthcare Reform

A New Jersey judge ruled that pregnant women are entitled to strong privacy protections. If they want the father banned from the delivery room, so be it.

 

The judge wrote

 

“Any interest a father has before the child’s birth is subordinate to the mother’s interests,”…. “Even when there is no doubt that a father has shown deep and proper concern and interest in the growth and development of the fetus, the mother is the one who must carry it to term.”

 

This closed the chapter of a legal dispute that was argued on the day the woman gave birth. The mother and father had planned on marrying, but, they ultimately became estranged from one another. Their total communications consisted of a sporadic text message from one to another. (Of course, that also characterizes the total communications of some married couples.)

 

The dad, Steven Plotnick, sued to get Rebecca DeLuccia, to inform him of when she went into labor, and to grant him access to the baby at the hospital once born. Apparently some of the oral arguments took place via telephone conference from the delivery room. Oy.

 

The judge ruled for the mom.

 

“any mother is under immense physical and psychological pain during labor. … The order the father seeks would invade her sphere of privacy and force the mother to provide details of her medical condition to a person she does not desire to share that information with.”

 

Dad is not appealing because he was allowed to see the child in the hospital after birth.

 

In buttressing his ruling, the judge opined the New Jersey Supreme Court previously struck down a law requiring that minors notify their parents before they get abortions, ruling in 2000 that the law infringed on those minors’ privacy rights.

 

“In light of the court rulings,” the judge wrote, “it strains logic to ask a pregnant woman to notify the father when she goes into labor.”

 

In New Jersey, if Mom wants Dad out of the delivery room, out he goes.

7 responses so far

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