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Addressing Inappropriate Expert Testimony Print E-mail
Written by Mike Sacopulos, JD   
Wednesday, 30 March 2011 08:58

Medical Justice:   Medico-Legal Q&A   

Q:    Recently I sat through a medical malpractice trial as a defendant. The experience was awful. Without getting into the particulars of the case, the matter was advanced by my former patient's attorney and expert witness. In fact, the "expert" testified against me and stated some truly outrageous "facts." Further, this expert no longer practices surgery and never performed the procedure which was the subject of the case against me. This expert's said testimony was clearly out of bounds. The world is a worse place because of his existence. I would like to take action against him, but my attorney says I have no grounds to sue. Could this possibly be right? What legal actions do I have?

A:    I am sorry to hear your experience, but unfortunately I must tell you I am not surprised. I am sure that you feel victimized by the legal system. Now, hold on tight, you are not going to like the first part of my answer.

A party to a lawsuit does not have a legal right to sue the opposing party's witness. The basis is for this, is that you cannot sue an individual that owes no duty to you. Whether you like it or not, you have no right to sue the expert witness that testified against you in the malpractice case. This is a general principle of law that applies in all fifty states and has its origin in British common law from centuries ago.

However, you are not without some legal options. In many states, the offering of testimony as an expert witness is considered the "practice of medicine." This means that a licensing board can review an expert witness's testimony.  If the testimony is truly "out-of-bounds" as you described, a licensing board may sanction the expert witness for the testimony offered against you. Another powerful option is to initiate an action before the expert's professional society.

Starting in the 1990's, professional societies began implementing and enforcing codes of conduct. In the landmark case of Austin v. The American Academy of Neurological Surgeons, the 7th Circuit Court of Appeals found that professional societies have a right to discipline their members and uphold standards for the association. Many, if not most, of professional societies now have some form of disciplinary proceedings to address malicious or factually inaccurate testimony by one of its members. Punishments implemented by these professional societies range from a private reprimand to a permanent expulsion. Discipline by one of these organizations can do more than just professionally embarrass an expert witness. They tarnish the credentials of the expert witness as to make him or her no longer desirable to serve as an expert witness in other future medical malpractice cases.

These techniques and others have been successfully utilized by Medical Justice on behalf of its members. While you may not have a right to sue the expert, there are other avenues that can lead to justice. 

Mike Sacopulos, JD, is general counsel for Medical Justice.  Run by physicians for physicians, Medical Justice is a membership-based organization that offers proven services and proprietary methods to protect physicians' most valuable assets - their practice and reputation. The company offers proactive services to deter frivolous medical malpractice lawsuits prevent Internet defamation and provide proven strategies for successful counterclaim prosecution. Medical Justice works as a supplement to conventional professional liability insurance.

Have a legal question?  Just ASK MIKE and your question will be addressed in an upcoming issue of FHIweekly. 

 

Last Updated on Wednesday, 13 April 2011 15:21
 
Seven ways you could be wasting money on your malpractice insurance Print E-mail
Written by Matt Gracey   
Wednesday, 23 March 2011 08:04

Did you know that most doctors waste money on malpractice insurance, which is one of the largest expenses each year in a medical practice?

Here are just seven of the most common ways doctors continually spend too much:

1.     Not asking for all of the available credits

Most insurance companies offer multiple credits, ranging from discounts for claims-free history and practicing part time to discounts for society membership, and many others.  Never assume your credits are correct and always ask how your bottom-line premium was calculated and if there are any more credits to apply to lessen your rate.      

2.     Purchasing duplicate coverages

Some coverages that another agent may try to say are necessary as part of another type of policy can be included in a malpractice insurance policy, so make sure there is policy coordination to avoid duplicate expensive coverage. 

3.     Not considering a deductible

Taking a deductible basically hedges your insurance bet.  Your agent should perform a ten-year historical deductible analysis each year to give you a decision-making tool for this. 

4.     Not choosing your liability limits wisely

Some doctors prefer lower limits but think that they are restricted from lowering their limits by a hospital, managed-care company, research study group, or the like.  Often, simply negotiating a bit will eliminate these concerns and allow a practice to lower to a much-less-expensive limit.

5.     Not considering purchasing as part of a larger group

Purchasing coverage as a small practice is almost never as economical as doing so as part of a purchasing-group program, so find a broker versed in finding you such savings.

6.     Not fully understanding your most important coverage features

Many extremely costly mistakes can be made while purchasing a complex malpractice insurance policy.  A relatively easy amount of education will go a very long way in protecting your practice from defending an uninsured lawsuit or simply making costly mistakes comparing policy features like "tails", "triggers", and retroactive coverage. 

7.     Not working with the right agent or broker

 Find an independent agent specializing in malpractice insurance placement for your type of practice setting (solo, group, hospital, nursing home, etc.) and one who has an educational approach versus a sales orientation.  Your agent should be strong enough within the malpractice insurance marketplace to fully and competently negotiate the best rates for you with the top insurers in your state. 

 

ABOUT THE AUTHOR: 

Matt Gracey is a medical malpractice insurance specialist with Danna-Gracey, a boutique insurance agency specializing in medical malpractice and workers compensation for Florida's medical community. To contact him call (561) 276-3553 or (800) 966-2120, or e-mail matt@dannagracey.com.

Last Updated on Wednesday, 30 March 2011 08:45
 
Human Resources Management Print E-mail
Written by Todd D. Demel, MBA   
Saturday, 12 March 2011 15:52

         Management of a medical practice's human resources can be a time-consuming and daunting task. For these reasons, it is often put aside or dealt with half-heartedly while other matters are given greater priority. Since many office managers are typically overwhelmed, they feel they don't have the energy to directly address fundamental personnel deficiencies. However, the very character of an office is determined by the morale of the staff and culture of the work setting. Furthermore, the functionality of a medical facility is in large part the result of the talents and capabilities of its people.

Due to the lack of time, energy, or sense of direction, a number of inadequate approaches are often taken in dealing with personnel issues. These include sweeping issues under the rug in hopes they will resolve themselves (they rarely do), taking an overbearing, dictatorial stance towards staff (this can often breed resentment), or spending an inordinate amount of time counseling those that have issues and continuing down this path in spite of little or no realization of results.

Whether you are an office manager or a physician grappling with such challenges, as an individual involved with human resource management (HRM), it is worthwhile to consider the following characteristics of your behavior:

Communication

Consistency

Specificity

Ethical/ legal dimensions

It is important that expectations and standards are communicated to staff. Each employee should be crystal clear as to what is expected of them, as well as the type of behavior and performance that is considered unacceptable. Regular staff meetings present an opportunity to reiterate guidelines and solicit feedback from staff. An environment that fosters this kind of open communication helps to dispel an 'us against them' mentality and prevents people from fueling the rumor mill. Employee feedback should be encouraged since it can lead to solutions to problems and this will enable the practice to remain dynamic and effective. And leaders must demonstrate consistency in behavior when administering disciplinary actions so that boundaries remain clear. Otherwise, guidelines can become blurred, thus resulting in less uniform behavior and performance.

The culture and direction of the practice should match stated objectives and priorities so that personnel do not receive mixed messages. This is where vision and leadership become critical. You cannot achieve your goals and get to where you are going if you have not established and communicated a clear framework for where you want to be. Leaders and managers must practice what they preach by displaying the very attitude and performance they are promoting. Remember, patients will ultimately sense whether there is negativity or feelings of resentment among the staff.

Job descriptions define roles and responsibilities and can be very helpful in managing job performance. They also help to bring about clarity and reduce the likelihood of misunderstandings. Additionally, job descriptions aid the practice in defending itself against complaints regarding pay, job performance, or discrimination. Are your job descriptions current? Personnel and functions may change over time. The descriptions should be realistic and based on what staff actually does rather than an abstract ideal. Finally, it is vital to provide constructive feedback and do so in the form of a two-way dialogue. All too often, employees are caught off guard, surprised, or disappointed during a performance review. However, if feedback is provided on an ongoing basis to the employee, there should be no surprises when it comes time for their 90-day or annual review. And don't forget about recognition. Studies show that recognition can be as important as pay, benefits, and status. Feedback should not be one-dimensional; so give credit where credit is due. In receiving accolades, your employees will feel valued and appreciated and this will motivate them to continue delivering optimum performance.

ABOUT THE AUTHOR   Mr. Demel is Senior Executive of Physician Management Services at MF Healthcare Solutions.  Possessing both operational and financial backgrounds, the MF Healthcare Solutions management team has vast experience in a range of healthcare industry settings. Our combined expertise enables us to offer specialized and effective physician practice management services. For more information, please visit: www.mfhealthcare.com or contact Todd Demel at (954) 475-3199.

Last Updated on Saturday, 12 March 2011 15:56
 
ACO Update Print E-mail
Written by Michael Casanova   
Thursday, 24 February 2011 10:09

I had mentioned in my most recent article (see ACO's A Viable Concept? By Michael Casanova Click here to view original article), according to the New York Times, the Justice Department and Federal Trade Commission are butting heads over which agency should get to enforce antitrust laws that affect the formation of ACOs .  The NYT reports the revelation was based on letters procured by the Times and written by J. Thomas Rosch, a Republican member of the Federal Trade Commission. He sent the letters to the White House and the Centers for Medicare and Medicaid Services.

This debate could further delay the formation of ACOs, as long as what's legal remains up in the air.  Which agency will ultimately police ACOs will most definitely affect how hard it will be to develop ACOs. It could have a significant impact on whether ACOs live up to their expectations as organizations that will improve cost efficiency while improving patient outcomes. Pundits have expressed concerns that if not properly regulated, ACOs could become monopolies.  That would lead to unintended, negative consequences.  The chief fear is that ACOs could accelerate rather than control healthcare costs.

 
Are Medical Providers Leaving P.I.P. Money On the Table? Print E-mail
Written by C. Glen Ged, Esq.   
Wednesday, 26 January 2011 00:00

Medical providers can't afford to miss out on the reimbursements they're entitled to in today's healthcare climate.  Yet many who treat automobile accident victims are routinely underpaid by insurance companies - and may not be aware of their rights to recover substantial sums through Florida's Personal Injury Protection (PIP) law.

Reimbursement under PI P, the "No Fault" insurance coverage required by law of Florida vehicle owners, has its own pre-requisites, deadlines and procedures. Understanding these requirements can mean the difference between full, timely payment and having to pursue a PIP suit.

Beginning with the patient's first visit, documentation is crucial to obtain proper reimbursement.  Even if you meet the pre-requisites and file timely (within 35 days of the service provided), it's possible that payment may fall short of the reimbursement to which you are entitled.

Under Florida law, you have five years from the date of service to pursue a claim adjustment for overdue benefits. A comprehensive five-year PIP audit by legal counsel experienced in PIP law is a sound business practice.  At no cost to you, an audit pinpoints the aggregate amount of reimbursements that you've "left on the table."  Those payments can be pursued by legal counsel without cost to you because the automobile insurance companies by law are responsible for payment and any related attorney fees.

Under PIP, medical benefits will be reimbursed for services that are lawfully provided, supervised, ordered, or prescribed by:

· Physicians

· Chiropractors

· Hospitals or Ambulatory Surgical Centers

· Qualified Healthcare Clinics

· MRI Companies

· Dentists

· Massage therapy and physical therapy ordered by a covered healthcare provider

· Any person/entity which provides emergency transportation or medical treatment

Medical providers, committed to putting their patients' best interests first, may face other challenges with PIP.  An insurance company may decline to pay for further treatment.  If that's the case, be aware that the insurer must first obtain a report from a properly licensed medical provider with the same licensing as the treating provider, documenting that further treatment is unreasonable, not medically necessary or not related to the accident.

An insurance company's requests for additional information can be another stumbling block to timely PIP payment. Under Florida law, a claim can be pursued only when overdue, and it is deemed overdue only after a provider has satisfied the insurer's information request.   

About the author:  C. Glen Ged is founding partner in the law firm of Ellis, Ged & Bodden, P.A. and can be reached for additional information at gged@ellisandged.com or 1 888 EGB-FIRM (342-3476) or 561 995-1966.

Last Updated on Saturday, 05 February 2011 15:04
 
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