How long am I required to keep a patient’s records once he leaves my practice?

Answer from Elizabeth Brody Gluck, Esq., of Verrill Dana LLP

A. You are required to retain patient records for seven years after the last patient contact.

Elizabeth Brody Gluck is a partner in the Boston office of Verrill, Dana, LLP.  She represents providers and health care businesses on issues related to risk management, contracting, e-health, and innovative health technology matters.  You can contact her at: ebrodygluck@verrilldana.com

The materials available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.  There is no attorney-client relationship created between this or any attorney or author contributing to this website and the reader or browser of this site.

If someone sends me an unsolicited e-mail asking for medical advice and I reply, does that put me at risk for malpractice?

Answer from Elizabeth Brody Gluck, Esq. of Verrill Dana LLP.

A. Yes, you could be at risk if the sender is injured based on your advice.

Merely accepting and replying to an e-mail may be enough to establish a physician-patient relationship. You are at risk. However, the sender would still have to prove the other elements of a claim against you. That is, he or she may be able to show that a duty was created by nature of the newly-established relationship, but the other elements of the claim (including a breach of that duty, that your advice was a proximate cause of the individual’s injuries, and damages) would still have to be proven.

Elizabeth Brody Gluck is a partner in the Boston office of Verrill, Dana, LLP.  She represents providers and health care businesses on issues related to risk management, contracting, e-health, and innovative health technology matters.  You can contact her at: ebrodygluck@verrilldana.com

The materials available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.  There is no attorney-client relationship created between this or any attorney or author contributing to this website and the reader or browser of this site.

A 17-year-old patient who is married and on active duty in the military needs surgery and says that he can provide consent for the treatment, even though he’s a minor. Is he correct?

Answer from Elizabeth Brody Gluck, Esq. of Verrill Dana LLP

A. He is.  Although he is one year shy of majority age in Massachusetts, he fits within the “mature minor” exception to the consent requirement.  In fact, he meets two exceptions to the need for consent.  Under Massachusetts law (Mass. Gen. Laws Ch. 112, § 12F) married minors and minors on active duty have the right to consent to their own treatment.  Note that different states have different laws on this subject, so be sure to check the law in your state to determine the need for consent under certain circumstances.

Elizabeth Brody Gluck is a partner in the Boston office of Verrill, Dana, LLP.  She represents providers and health care businesses on issues related to risk management, contracting, e-health, and innovative health technology matters.  You can contact her at: ebrodygluck@verrilldana.com

The materials available on this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.  There is no attorney-client relationship created between this or any attorney or author contributing to this website and the reader or browser of this site.

Why are health care employers’ worries tripling?

Physicians and health care administrators whose attention has undoubtedly been focused on the financial implications of the Commonwealth’s health insurance initiative must put a new legislative mandate on their radar screen.In April, the state Legislature passed a bill that will soon make violations of the Massachusetts Wage Act subject to mandatory triple damages, even for inadvertent violations.

The Wage Act allows employees to seek redress for failures to timely pay wages, including regular wages, overtime pay, prevailing wages, vacation pay and commissions. In addition, employers may violate the Wage Act if they have improperly classified workers as independent contractors rather than as employees – and will now be subject to triple damages for each of those improper classifications.

This change in the law has particular relevance to health care providers because of the varied ways in which they meet their workforce needs: through the use of independent contractors, per diem employees and leased employees, for example.

Click here to learn more about how to avoid violating the new Wage Act.

What is the government investigating in health care fraud this year?

Physicians and other health care professionals should take heed: the Office of Inspector General (OIG) of the Department of Health and Human Services, which is responsible for rooting out health care fraud, recently announced its areas of focus for 2008.

The OIG’s “Work Plan” for fiscal year 2008 was released on Oct. 1, 2007. For physicians and health care professionals, the government’s top areas of focus for fraud are:

• Medicare assignment rules

• Sleep and polysomnography services

• Medicare payments for psychiatric services

• Independent Diagnostic Testing Facilities

• Services performed by social workers

Health care fraud concerns are, or should be, on all physicians’ radars. Complex and sometimes counterintuitive rules and regulations can create traps – civil, administrative, and criminal – for even the best-intentioned physician.

Click here to read more about the top reasons the government could investigate your medical practice.

How can I prevent medical identity theft?

A rising trend of medical identity theft – where a patient’s personal information is used fraudulently to obtain or to bill for medical services – is raising tricky legal issues for medical providers.

When misinformation finds its way into the medical file of the identity theft victim, doctors and hospitals must juggle the competing interests of the patient’s demands, federal privacy requirements and their own liability.

Here’s a look at what experts suggest:

• Require patients to provide a photo I.D.

• Change the way prescriptions are labeled.

• Restrict inside access based on an employee’s role.

• Track who has access to audit logs.

• Use electronic records.

• Work directly with patients.

Click here to read more.

Why would the government audit my medical practice…and how do I respond?

According to Boston attorney Paul Cirel, a partner at Dwyer & Collora who represents physicians and other health care providers:There is a veritable alphabet soup of health care regulators and weaponry: CMS (the Centers for Medicare and Medicaid Services); DMA (Division of Medical Assistance); OIG (Office of the Inspector General); MFCU (the Medical Fraud Control Unit); the Attorney General’s Office (AGO); the DOJ (Department of Justice) and, well, you get the picture.

The common thread is that any regulator will surely want records, and they will probably want to talk. Before even thinking about answering the door, we need to step back and focus on why the regulators are knocking in the first place.

Click here to read more about what the government might be seeking when it audits a health care provider.

Click here to learn more about the best way to respond when the government comes.

Can I terminate a noncompliant patient without being sued?

Many physicians would consider termination of a noncompliant patient to be the nuclear option.

But Cambridge attorney Martin Foster, who represents physicians, says they need to be willing to pull out of the physician-patient relationship when there are no clinical barriers to compliance, and the patient knows the risks of noncompliance, yet refuses to follow the suggested course of treatment.

Click here to learn more about how to fire a patient without being sued.

Can I be sued if my patient injures someone else?

The short answer is yes, under a recent ruling from Massachusetts’ highest court, and it’s still not clear how far this ruling could extend.

In December, the court ruled in Coombes v. Florio that a woman could sue a doctor who prescribed a drug that allegedly caused the elderly driver of a vehicle to pass out behind the wheel. The vehicle struck and killed the woman’s 10-year-old son.

Doctors shouldn’t change their prescription practices as a result, insurers and attorneys advise, but they should be very careful to document their warnings – and in some cases they should follow up more carefully to see if a patient is becoming impaired by a medication’s side effects.

Click here to read more about how to protect yourself from a lawsuit over the medications you prescribe to your patients.

What do I need to know about the Stark III rules?

As a result of the Stark III regulations, physicians must review their contracts and professional arrangements immediately to make sure they comply with the new self-referral rules.

The Stark law prohibits physicians from referring Medicare patients to hospitals or other entities in which they have a financial relationship, unless the arrangement fits into one of a number of specific exceptions.
The new Stark III regulations went into effect on December 4, 2007.

The most controversial provision says that a physician “stands in the shoes” of his or her group practice for the purpose of determining whether Stark covers the doctor’s relationship with another entity.

Unlike other regs, such as those for the anti-kickback statute, the Stark regs are not simply agency guidance – they have the force of law.

Reading between the lines of the new regs, CMS has signaled that more enforcement is likely and physicians and health care providers should be prepared, attorneys said.

Click here to read more details about the changes and how they affect your practice.