Author Archives: Matthew Kinley


One of the most important decisions when facing legal difficulties is hiring a lawyer that will represent the client’s needs.  It’s even more difficult when hiring a lawyer to represent a healthcare professional because of the labyrinth of laws and regulations that affect healthcare.

The lawyer should also be appropriate for your issue.  Medical malpractice lawyers don’t necessarily understand the issues involved in a merger, and a corporate lawyer isn’t ideal in dealing with liabilty issues when faced with a patient claiming malpractice.  A corporate lawyer shouldn’t represent a doctor without specialized knowledge in healthcare law.

Other issues medical professionals should be aware of include:  hourly rates of the lawyers, the approach that the lawyers will take.  Most important, you should have a comfortable relationship with the lawyer and the lawyer’s office and the lawyer should be available to you upon reasonable notice.

This article from the American Medical Association deals with these and other issues for consideration when a doctor hires a lawyer.


Submitted by:  Matthew L. Kinley, Esq.

Mr. Kinley Speaks to OCMA regarding HIPAA Updates

HIPAA Update: The Omnibus Rule

Date: 6/4/2013

Time: 6:00 PM – 8:00 PM

Irvine, CA

Registration Fees:


The Doctors
Company is fiercely committed to advancing, protecting, and rewarding
the practice of good medicine. We remain the leader in developing
innovative tools that can help you improve the quality of patient care
and decrease the number of adverse events. We invite you to join us for
our seminar
HIPAA Update: The Omnibus Rule.
Target Audience:
Physicians of All Specialties
The new
HIPAA Omnibus Rule includes new breach notification requirements; limits
for use and disclosure of Protected Health Information (PHI), defined
Business Associates and Subcontractors, increased Patient Rights, change
in the Notice of Privacy Practice, increased fines and penalties, and
other important changes. There is a new focus on investigating and
penalizing noncompliance due to "willful neglect." The Office of Civil
Rights will begin enforcement of the Omnibus Rule on September 23, 2013.
Attend this session to learn what actions your practice must take to
meet the new federal compliance regulations.
At the conclusion of this program, the physician should be able to:
  • Describe new limits on uses and disclosures of PHI
  • Recognize Business Associates and Subcontractors
  • Explain increased Patient Rights
  • Outline action steps for compliance with Omnibus Rule  
    Kathleen Stillwell, MPA/HSA, RN, CPHRM, Patient Safety Risk Management Account Executive, The Doctors Company
    Matthew Kinley, JD, Partner, Tredway Lumsdaine & Doyle, LLP
    Tuesday, June 4, 2013
    6:00 PM – Dinner
    6:30 – 8:00 PM – Seminar
    OCMA Conference Center
    17322 Murphy Ave.
    Irvine, CA 92614
    OCMA Members and  Non-member physicians: Free
    you have any questions regarding the seminar, contact The Doctors
    Company's Patient Safety Department at (800) 421-2368, extension 1243.
    Doctors Company is accredited by the Accreditation Council for
    Continuing Medical Education (ACCME) to sponsor continuing medical
    education for physicians.
    Doctors Company designates this educational activity for a maximum of
    1.5 AMA PRA Category 1 Credit(s)™. Physicians should only claim credit
    commensurate with the extent of their participation in the activity.
    Doctors Company wishes to take steps to ensure no individual with a
    disability is discriminated against because of the absence of auxiliary
    aids and services. If special arrangements are required for an
    individual to participate in the program, please contact The Doctors
    Company at least 10 days prior to the scheduled date.

    View Speakers

    Event Description:
    Attend this session to learn what actions your practice must take to meet the new federal compliance regulations.

    HIPAA: Business Associates and Business Associate Agreements

    Health care
    professionals working with personal medical information face major compliance
    obligations under the newest rules related to “protected health information
    (“PHI”).  The Omnibus rules were issued by the Department of
    Health and Human Services issued last January (the “Final Rule”).

    The Final Rule
    sets requirements and authorizes substantially increased penalties for
    violations of HHS’ regulations under the Health Insurance Portability and
    Accountability Act of 1996
    (HIPAA) and the 2009 Health Information Technology
    for Economic and Clinical Health
    (HITECH) Act. Particularly in light of those
    increased penalties, HIPAA covered entities (health plans, health care
    clearinghouses, and most health care providers) and their “business associates”
    — which are now directly subject to HHS regulations — should be actively
    reviewing their new responsibilities under the Final Rule.

    The Final Rule’s
    significant aspects relating to business associates are:


    • Make
      subcontractors (and sub-subcontractors, sub-sub-subcontractors, etc.) of
      HIPAA business associates themselves “business associates” and thus
      directly subject to most provisions of the HIPAA Privacy Rule, as well as
      the HIPAA Security Rule and HHS’ Breach Notification Rule;
    • Eliminate
      the “risk of harm” standard that HHS previously prescribed as a criterion
      for determining when it is necessary to notify individuals about a breach
      of security affecting their PHI; and
    • Require
      amendments to Notices of Privacy Practices, business associate agreements,
      and a variety of policies and procedures entailed in complying with the
      Privacy Rule.

    With limited
    exceptions, compliance with the Final Rule’s provisions is required by
    September 23, 2013.

    The HHS has
    compiled extensive information about the business associates at their WEBSITE .

    The site
    includes a generic, sample agreement for business associates.  The sight
    warns that not all of the sample should be used and parts should be modified to
    set the exact situation. This agreement is a good start for complying with the

     By Matthew L. Kinley, Esq


    The United States Congressional Research Service has issued this helpful white paper answering employers questions about the new penalities for failure to provide appropriate insurance.  The paper, called POTENTIAL EMPLOYER PENALITIES UNDER THE PATIENT PROTECTION AND AFFORDABLE CARE ACT, does not provide any new information, but it is a good source for those people who want to familiarize themselves with the requirements. 

    Home Healthcare vs. Personal Care: When is a license required?

    When does
    an organization that provides home services such as companionship or personal
    need a state license? What is the difference between home health care
    services and other care provided to seniors or medically challenged

    California, there is no clear answer. 
    Under Health and Safety Code section 1475(b), "All organizations
    that provide skilled nursing services to patients in the home shall obtain a
    home health agency license issued by the department." Skilled nursing is
    defined as services provided by a registered nurse or licensed vocational
    . (Health and Safety Code section 1427(b).   A "home health agency" includes
    "a private or public organization, including, but not limited to, any partnership,
    corporation, political subdivision of the state, or other government agency
    within the state, which provides, or arranges for the provision of, skilled
    nursing services, to persons in their temporary or permanent place of
    residence."  Under this statute,
    activities that require medical or professional judgment require a license.

    There are
    thousands of companies that are providing "personal care." This is
    care provided to people who may need help with their day to day activities,
    including bathing, shopping, cooking and cleaning.  These individuals who have no training and
    they do not have any experience or education in health care related tasks.  They likewise have no bonds which could be utilized to pay in the event of some sort of damage or abuse, such as financial elder abuse.  As long as they avoid medically intensive
    activities, they do not require a license.


    organizations without licenses cannot, 
    under Health and Safety Code section 1476:


    Represent itself to be a home health agency by its name or advertisement,
    soliciting, or any other presentments to the public, or in the context of
    services within the scope of this chapter imply that it is licensed to provide
    those services or to make any reference to employee bonding in relation to
    those services.


    (2) Use
    the words
    home health agency, home health, home-health, home health, or in-home health, or any combination of those terms, within its name.


    (3) Use
    the words
    skilled or nursing, or any combination of those terms within its name, to
    imply that it is licensed as a home health agency to provide those


    persons can help with
    prescribed drugs.

    interpretations of the Controlled Substances Act permits a companion to handle
    a drug prescribed for his or her employer in ways which are consistent with the
    prescription short of actual administration of the drug and which do not
    constitute the practice of medicine or nursing. 

    question arises as to what is meant by "administering the drug."   This again is a gray area.  In a telephone conversation with the
    Department of Healthcare, I was told that in investigations about licensure
    requirements, the state investigators often will look at the condition of the patient.  Is the patient directing the unlicensed care
    provider?  Could the patient administer
    the drugs themselves?  Is the patient
    providing direction to the care provider? 
    If the patient is unable to direct such care, it is likely the care
    requires a license.

     A home
    care companion may administer non-prescription drugs to his or her employer in
    the employer
    s home under the domestic
    administration of family remedies, but this only extends only to the
    administration of nonprescription drugs in
    the domestic environment. It does not authorize a companion to participate, by
    advice or otherwise, in the diagnosis or decisions regarding the drug to use or
    its dosage made by the employer or his or her physician. Nor does it authorize
    the companion to administer controlled substances of any kind.

    The same
    questions arise with home based equipment, including oxygen, sleep apnea
    machines,  dialysis machines, catheters
    of various kinds, and gastrostomy feeding, among many others.  This provides a scenario for disaster for the
    non-licensed care provider and the patients they serve.

    Take for
    example, gastrostomy feeding.  In such
    cases, a surgical opening into the stomach is made which allows a tube to be
    inserted in the stomach through the abdominal and stomach walls. This allows
    food and fluid to be instilled directly into the stomach from outside the body
    when swallowing is impossible because of complete obstruction of the esophagus.
    It is also sometimes used temporarily after operations on the esophagus or for
    postoperative decompression in preference to nasogastric intubation. During
    gastrostomy feeding the patient must be upright lest the danger of aspiration
    or regurgitation occur. Precaution is required in handling the gastrostomy tube
    which has been either fastened in place with sutures or has been anchored in
    place with tape depending on the type of gastrostomy tube used, a
    small-diameter rubber, perforated tube or a Foley catheter.

     With the
    gastrostomy feeding itself, one first instills a clear liquid to make sure the
    tube is open and, again, feeding is gentle using gravity or slow infusion. At
    all times the tube must be kept open, because should it become clogged or
    blocked, or accidentally removed, further intervention will be necessary to
    replace it. The task of feeding is not in itself particularly difficult, but it
    does require a studied knowledge and understanding of the principles involved,
    an ability to recognize signs of potential complication, and an appreciation
    for the potential for yet another intervention on the weakened patient.

    the requirements for such care, the California Attorney General advised that
    such conduct requires "substantial scientific knowledge and technical
    skill."  Even though many people
    complete such procedures at home, home care providers are not allowed under the
    law to provide such service without a license. 
    As stated by the Attorney General, "We are bolstered in this
    assessment by title 42, Code of Federal Regulations, section 409.33(b)
    governing Medicare eligibility for payments for skilled nursing services
    Levin tube and gastrostomy
    as services which qualify as
    skilled nursing services. Stedman
    s Medical Dictionary, 5th ed.,
    defines Levin tube as a tube introduced through the nose into the upper
    alimentary canal.  Accordingly these
    procedures come within the statutory definition of the practice of nursing and
    therefore may only be performed in California by licensed nurses and


    California Legislature is currently reviewing bills to license home care
    providers who do work other than healthcare. This article in California Healthline details some of the most recent efforts.

    proposed regulations could serve to clarify when a license is required, but
    will certainly drive up the cost of such care, making it out of reach for many
    of our seniors and medically challenged.   Questions about whether a license is required should be directed a lawyer with knowledge of these regulations.

    Nursing Home: Prostitutions and Drug Ring by Senior Patients

    What's the liablity for senior patients who run a prostitution and drug ring out of a nursing home?  check out this case from New Jersey:



    This is the fourth and final in series of articles about changing or
    terminating a practice.  This article focuses on notifications to
    patients when a doctor retires or goes to another practice.

    What to do with patients' records when a physician leaves?    Even if there is a provision with the physician in his employment contract, is it a legally valid agreement to provide the physician and the patient with continuing access to the records?

    of Records

    The departing physician and the practice need to
    come to a written agreement about who is the custodian of the records and the
    conditions under which the departing physician will be granted access to the
    records of the patients he or she treated. Consult an attorney who is familiar
    with health care, insurance and contract law for assistance in drafting the
    agreement or contract.


    custodianship agreement should state whether patient authorization is needed
    for the departing physician to access his or her former records or to obtain a
    copy of those records for his or her health care operations (such as a medical
    malpractice allegation). If not specified in the agreement, state law may
    determine whether patient authorization is needed for the departing physician
    to access or copy these records. Generally, physicians should be allowed access
    to the records of patients they treated. The records provided should reflect
    care up to and including the day of the physician


    custodianship agreement should specify the access process, contents of the
    records to be copied and who pays for copies of the records provided.


    security. The custodian of the records has a legal duty to maintain the
    security, integrity and confidentiality of the records, and to comply with
    state law and HIPAA regulations about patient and third party access. 


    access to records. When the departing physician continues to treat patients from
    his or her previous practice and needs access to their records, the priority
    should always be patient safety and well-being in order to avoid delays in
    diagnosis or treatment. Juries will not be sympathetic to physicians or
    practices that impede access to health care information for business or
    financial reasons. A list of the patients treated by the departing physician
    should be given to each party, in order to simplify requests for access to and
    copies of the records. The list should specify the date of the physician
    s departure.


    Get the
    s authorization. If the
    patient will be transferring care to the departing physician, try to obtain a
    written authorization from the patient before providing a copy of the medical
    record. If you do not have a copy of an authorization, do not delay transfer of
    the records as long as you can verify and document the purpose of the
    disclosure and the identity of the party requesting it.



     This is the third in series of articles about changing or
    terminating a practice.  This article focuses on notifications to
    patients when a doctor retires or goes to another practice.

    When physicians leave a practice, both the practice and the doctor should make sure that certain third parties are notified in addition to notifiying patients.  Vigilance in such notifications helps protect each party from liability and potential adverse consequences in the future.

    NOTICES SHOULD BE IN WRITING.  Be prepared to prove that you made the required communications

    Parties to Notify

    upon the provisions of contracts and state law, both the departing physician
    and the practice may need to notify various the following third parties:


    Professional liability carriers need  to
    know of any changes in order to ensure coverage of the care rendered in both
    the prior and future practice settings. Physicians who are retiring and have a
    claims made policy should inquire about extended reporting period endorsements or tail coverage.

    Medical, life and disability carriers should also be notified.


    All payers should be notified of the change.  This should be done as soon as possible, especially with regard to Medicare, in order to make sure that payments to the physician in the new practice.


    The medical
    staff committee of hospitals where the departing physician has privileges. If
    he or she is on-call at the hospital, notify the emergency department as well.

    State Licensing, Permits, Certifications, Registrations.

    The state
    board of medicine (if required by state law).  Any other federal or state licensing in held in the name of the departing physician (as opposed to the name of the practice).

    Other Contracts.

    Any contract held in the name of the departing physician, such as building or equipment leases.

    counsel for assistance as needed in contract provisions and employment law.

    By: Matthew L. Kinley, Esq.




    This is the second in series of articles about changing or
    terminating a practice.  This article focuses on notifications to
    patients when a doctor retires or goes to another practice.


    should the organization do when (1) a physician decides to leave and (2) the physician’s patients decide to stay with organization?

    First, as stated in the prior posting on this subject, the
    patient should be notified about the change in physician.  The patient should be provided the
    opportunity to make inquiries, and someone within the organization should be
    tasked with taking those calls. If the care will be provided by another
    practitioner with the same scope of practice as the departing physician, the
    organization should make sure that physician is appropriate for the
    patient.   If the physician is in the same practice, notice should simply inform the
    patient of the new physician’s name, and reference that the medical records
    will be maintained.

    Special care should be utilized when replacing a specialist, particularly if a different type of specialist will be the replacement.  The organization should make sure that the replacement physician has the capability to service the patient.  The notice to the patient should reflect the change in specialities.

    to the Departing Physician‘s Patient.

    general, physicians are not liable for the care given by the previous provider,
    unless they were part of the same medical group or otherwise participated in
    the prior care. To promote continuity of care and avoid allegations of failure
    to diagnose or failure to follow-up, however, the new provider assuming care of
    the patient should obtain the patient’s medical record from previous providers
    and review it. Once the review is complete, make an entry in the medical
    record, noting pertinent history and current healthcare plan and needs.  At the time
    of the first visit, carefully evaluate and document the  patient’s current
    condition at the time of the first visit. Take special care to document the then-current condition of the patient and changes to the patient’s care plan.

    A top cause of malpractice lawsuits is comments by physicians about their predecessors and their care or lack thereof.  Lawsuits will often include both the new and the old physician.  Physicians should be counseled to focus on the current condition of the client and appropriate treatment options.When discussing prior care, all physicians should use maximum caution.   Physicians and nursing staff should restrict their comments to the known medical facts, and refrain from speculation or
    blame. If asked by the patient to render an opinion about the prior physician’s
    decision-making process or care, inform the patient that you were not present
    during that aspect of the care and are therefore not able to comment upon it.
    Refer the patient back to the prior physician.

    By: Matthew L. Kinley, Esq.


    This is the first in series of articles about changing or terminating a practice.  This article focuses on notifications to patients when a doctor retires or goes to another practice.

    Physicians who retire or leave a medical practice are
    duty-bound to notify patients of the change.
    Even if the physician is employed by a group or other corporate model,
    the physician and the entity should work together to notify patients that the
    physician is changing practices and how the patient will obtain continued
    care.   The patient must have the right
    to change physicians, even follow the departing physician, if the departing
    physician is still providing care.

    Consider this scenario:  A doctor leaves a practice, fully expecting the practice to follow-up on her patients.  A chronically ill patient is unable to get an appointment with “her doctor,” and fails to come in for a regular visit.  The patient dies fromt the chronic disease, a death that arguably wouldn’t have occurred if she had visited her phsyician’s office.  The claim agasint the physician:  Abondonement of Patient.  The scope of this article is preventing such claims.


    The California Medical Board recommends that “due
    care be exercised when closing or departing” a medical practice to ensure
    against “patient abandonment.”
    This includes notification of the move.
    As stated by the Medical Board:

    “It is the patient’s decision from whom to receive
    medical care. Therefore, it is the responsibility of all physicians and other
    parties who may be involved to ensure that:

    • Patients are notified of changes in the medical practice.
      This is best done by letter to patients by the physician explaining the change,
      including the final date of practice. (The California Medical Association (CMA)
      recommends, if possible, that letters be sent by certified mail, return receipt
      requested, and that a copy of the letter with the return receipt be kept. To
      inform inactive patients or those who have moved away, the CMA also recommends
      placing an advertisement in a local newspaper.)
    • Patients be advised as to where
      their medical records will be stored including how they may access them.
    • To
      facilitate the transfer of medical records to the new treating physician, an
      authorization form should be included in the letter.
    • That patients secure another health care provider. If the
      practice is being taken over by another physician or another can be
      recommended, the patients can be referred to that physician.”


    Retiring or Leaving Physicians. 

     When physicians retire or leave a practice, patients have
    the right to decide who will provide them care.
    They may stay with the current practice, continue their care with the
    departing physician, or go to some other physician all together.

     Physician’s Agreement.

     The original practice agreement should address the
    process to be used when a physician leaves the practice.  Such agreement should not interfere with the
    patient’s right to choose their physician.
    All parties should cooperate to send appropriate notice to patients.

    Avoid Patient Abandonment.

     Before the departing physician terminates any
    physician-patient relationship, that patient must be given sufficient advance
    notice to enable him or her to secure the services of another physician. Failure
    to provide sufficient notice may leave the departing physician and/or the
    practice vulnerable to charges of patient abandonment, which is when a
    physician fails to provide for necessary medical care to a current patient
    without adequate justification. In general, once a physician-patient
    relationship is established, the physician and the practice have an ongoing
    responsibility to the patient until it is terminated.

    Patient Notification.

     The exact nature of the notification depends on the
    patient.  Patients with more severe
    conditions require more immediate notification, and consideration should be
    given to sending letters by certified mail, with return receipt requested. Such
    patients are those who are more likely to experience adverse outcomes and allege
    abandonment if their physician is unavailable for ongoing care. You should use
    your professional judgment when deciding who falls within this category.
    Examples would include post operative patients and those currently being
    followed for serious or chronic conditions.
    The parties should keep a copy of the notification letter and
    certification material in the patient’s record. 

    Active patients who aren’t high risk should be sent a letter by regular
    post. Examples of active patients include those seen within the last 12 to 18
    months. Keep a copy of the notification letter in the patient’s record.  Notify other patients who won’t be receiving
    a letter by placing a notice in the local newspaper with the largest circulation,
    putting a sign up in the lobby and preparing a patient handout.

    The practice should also provide a script for
    on what to say. This should include information on how to contact
    the departing physician.

    What should the patient notification say?

     If the departing physician will be available for ongoing
    care, explain to patients that the physician is leaving the practice but is
    available in the area. Tell patients that they have the choice of staying with
    the practice or continuing to see the same physician in his or her new
    location. Instruct patients who choose to follow the physician that, upon their
    written authorization, a copy of their medical record will be forwarded to the
    physician at his or her new location.

    To expedite the transfer of records, you should consider
    including an authorization form with the letter of notification. If your
    practice is going to charge the patient for the photocopying costs, you should
    inform the patient what the fee will be. Any material that is related to
    patient care should be considered part of the medical record and should be
    provided to the new physician. Both the practice and the new physician should
    keep a copy of the medical records.

    The best practice for both the group and the doctor is to work together to send notices to the patients in order to prevent claims in the future for patient abandonment.

    By:  Matthew L. Kinley, Esq.