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.

http://amednews.com/article/20130610/profession/130619980/4/

Submitted by:  Matthew L. Kinley, Esq.

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

In
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
nurse. (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.

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

"(1)
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
services."

Non-licensed
persons can help with prescribed drugs.

Some
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. 

 A
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.

Reviewing
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
listing “Levin tube and gastrostomy
feedings” 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
practitioners."

The
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.

 Such
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.

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:   http://www.northjersey.com/community/seniors/Drug_prostitution_sting_at_Englewood_senior_center_nets_three.html?page=all

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?

Custodianship
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.

The
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’s
departure.

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

Ensure
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. 

Provide
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
patient’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

Third
Parties to Notify

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

Insurance

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.

Payers.

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.

Hospitals.

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.

Legal
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.

What
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.

Service
to the Departing Physician‘s Patient.

In
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
receptionists 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.