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23 Mar, 2015

Malpractice Payments Decrease

2018-04-23T23:57:54-05:00March 23rd, 2015|Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

According to a new study appearing in the Journal of the American Medical Association, in the past ten years, the rate of medical malpractice claims resulting in some sort of payment has seen a drastic reduction. The study examined data from the National Practitioner Data Bank and the American Medical Association's Physician Masterfile to identify trends in the frequency of claims against doctors over a 19 year time period ending [...]

3 Feb, 2015

Why you shouldn’t view your spouse’s PHI (and share with a coworker).

2018-04-23T23:57:54-05:00February 3rd, 2015|Health Care Law, HIPAA, HITECH, Midwest Medical Legal Advisor, Risk Management|

Recently, a federal court judge dismissed a lawsuit that an Ohio woman filed claiming that a hospital did not safeguard her EMR (electronic medical records). In an interesting twist, the woman alleged that her husband, who worked at the hospital, was able to access her EMR and share them with a co-worker.  This was not just any co-worker.  Allegedly, it was a co-worker with whom the husband was having an [...]

30 Dec, 2014

It’s HIPAA time!

2018-04-23T23:57:55-05:00December 30th, 2014|Disciplinary Actions, HIPAA, Midwest Medical Legal Advisor, Risk Management|

I thought I'd spend the next few blogs discussing the joy that is HIPAA compliance.  Previously, I blogged about two NMC employees who had been fired after viewing the protected health information of Dr. Richard Sacra, one of the patients treated at the NMC for ebola.  The potential fines and penalties that come with a HIPAA violation likely played a large role in these firings. But let's start from the very [...]

23 Dec, 2014

Selfies are fun (unless you are performing surgery)!

2018-04-23T23:57:55-05:00December 23rd, 2014|Disciplinary Actions, Health Care Law, HIPAA, Medical Malpractice, Midwest Medical Legal Advisor|

Let's be honest.  Selfies are fun.  They are great ways of capturing the moment.  Like my daughter and I on the merry-go-round at FunPlex this summer.  Selfies can also get you in lots of trouble. I can honestly say I have  never had a doctor or other health care provider ask whether taking a selfie during surgery is a good idea.  It's not.  As some doctors in China recently discovered. [...]

16 Dec, 2014

Contracts for Doctors

2018-04-23T23:57:55-05:00December 16th, 2014|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

It is not unusual for a doctor to be asked to sign a contact governing his or her employment and/or ownership of a business as a doctor.  The issues to consider in reviewing these contracts are many: -          Med mal insurance -          Staffing (nurses, assistants, etc) -          Provision of medical equipment -          Billing -          Compensation structure -          Employee versus owner -          Non complete clauses -          Non solicitation clauses -          Scope of [...]

10 Dec, 2014

Black box to be used to record surgery?

2018-04-23T23:57:55-05:00December 10th, 2014|Health Care Law, HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management|

Surgeons: how would you like every move of the surgeries you perform recorded with a “black box” type device?  Such a device would make a record of every movement during a surgery, and potentially, provide real-time feedback to identify mistakes.  Not only would it record the surgery itself, it could record every word uttered by the medical team during a surgery. The potential and hopeful benefits include improved results and reduced [...]

7 Oct, 2014

Ebola in Texas!

2018-04-23T23:57:55-05:00October 7th, 2014|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor|

Earlier, I blogged about two NMC employees being fired for viewing Dr. Sacara’s medical records without authorization.  Dr. Sacara had been treated for Ebola at NMC. Recently, a man in Texas was diagnosed with Ebola.  This is different from Dr. Sacara, who was being treated at NMC for Ebola.  In other words, NMC knew of Dr. Sacara’s condition.  The Texas patient contacted Ebola in Liberia, traveled to the United States [...]

29 Sep, 2014

Ebola in Omaha leads to firing of two NMC employees

2018-04-23T23:57:55-05:00September 29th, 2014|Midwest Medical Legal Advisor|

The Omaha World Herald has recently reported that two employees from the Nebraska Medical Center were fired for viewing Dr. Rick Sacra’s medical records.  Dr. Sacra is the doctor-missionary who contracted the Ebola virus while treating others afflicted with the virus in Africa.   According to the Medical Center, “based on the results of the investigation conducted, two employees no longer work for the organization and other corrective action has [...]

7 Aug, 2014

Doctors beware: tax-fraud scheme targets the medical profession.

2018-04-23T23:57:55-05:00August 7th, 2014|Midwest Medical Legal Advisor, Risk Management|

An increasing number of doctors have reported that they have been targets of tax fraud.  Here’s what happens: you, happy that it is April 15, go to file your tax return.  The IRS kindly informs you that your return has already been filed.  What is this, you think?  Has my accountant already handled this?  The IRS then gives you some odd news: you were awarded a large refund.  As reported [...]

29 Jul, 2014

A success story: one clinic’s reduction of med-mal claims.

2018-04-23T23:57:55-05:00July 29th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

A hospital in Connecticut recently reported a drastic drop in both claims made and settlements paid after a safety training regime aided by the hospital’s med-mal insurer. In 2004, the hospital joined with its med-mal insurer in an effort to increase patient safety and in turn decrease claims made and amounts paid. Here’s what they did: -          standardized care, -          implemented new teamwork protocols, and -          enhanced oversight of clinical [...]

22 Jul, 2014

John Hopkins to pay $190 million for spying doctor.

2018-04-23T23:57:55-05:00July 22nd, 2014|Health Care Law, HIPAA, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

A recent report by CNN indicates that John Hopkins has agreed to a whooping $190 million settlement in a case involving a gynecologist who was alleged to have secretly photographed and recorded his more than 7000 patients. Dr. Nikita Levy was fired in February 2013 after the Baltimore based health care system discovered he had been using a pen-like camera around his neck to snap photographs of patients.  A diligent co-worker suspected [...]

15 Jul, 2014

Will Obamacare increase the cost for med-mal insurance?

2018-04-23T23:57:55-05:00July 15th, 2014|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

A recent report by the Rand Corporation, sponsored by the U.S. Department of Health and Human Services, concludes that the cost of medical malpractice insurance may actually increase under the Affordable Care Act a/k/a Obamacare.  The increase could be up to 5% in some areas, although this is an early and inexact estimate. According to David Auerbach, the study's lead author and a policy researcher at RAND, “the Affordable Care Act [...]

8 Jul, 2014

Florida throws out caps in med mal cases

2018-04-23T23:57:55-05:00July 8th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Tort Reform|

It's time for my somewhat regular update regarding the latest state to address the constitutionality of caps on damages in medical malpractice lawsuits.  Previously, I have discussed Kansas and Missouri and their judicial treatment of such caps. In its recent decision, the Florida Supreme Court threw out the state's statutory cap on non-economic damages in medical malpractice cases as violating the Equal Protection Clause of Florida's Constitution.  In a blistering [...]

23 Apr, 2014

Heineman vetos bill to give NPs more freedom

2018-04-23T23:57:55-05:00April 23rd, 2014|Health Care Law, Midwest Medical Legal Advisor, Risk Management|

Gov. Dave Heineman vetoed Legislative Bill 916, which would have allowed nurse practitioners to practice  without a supervising doctor.  Currently, Nebraska state law requires nurse practitioners to have a practice agreement with a doctor.  Gov. Heineman has made sure that continues. According to the Omaha World Herald, the supporters of LB 916 claim that the current model - requiring NPs to have a supervising doctor - contributes to a shortage [...]

27 Mar, 2014

He said she said he heard it from a friend….

2018-04-23T23:57:55-05:00March 27th, 2014|Health Care Law, HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

REO Speedwagon might have been discussing the Nebraska Supreme Court's recent opinion in C.E. v. Prairie Fields Family Medicine, P.C., 287 Neb. 667 (2014) in their famous song, "Take it on the Run." The Prairie Fields case dealt with the issue of whether a patient could sue a medical provider for intentional and negligent infliction of emotional distress for the alleged unauthorized disclosure of that patient's testing positive for HIV. In [...]

12 Mar, 2014

Obama on Between Two Ferns

2018-04-23T23:57:55-05:00March 12th, 2014|Health Care Law, Midwest Medical Legal Advisor|

Who would have ever thought that President Obama would appear on "Between Two Ferns with Zach Galifianakis" on the Funny or Die website.  See the video here.  Obama was there to pitch, what else, Obamacare.  To do so, he had to answer the following questions painfully posed by Galifianakis: "What is it like to be the last black president?" "What should be done about North Ikea?" Obama was not without [...]

21 Feb, 2014

Nebraska scores well on amount paid for med-mal claims.

2018-04-23T23:57:55-05:00February 21st, 2014|Midwest Medical Legal Advisor|

In 2010, the last year in which data is available, Nebraska scored 44th in the amount paid per capita for medical malpractice claims.  The total?  A whooping $4.92. This figure represents the total amount paid in Nebraska divided by the total population of the state.  You can see the entire report here.  By my math, that equates to approximately $9 million in claims paid in Nebraska in 2010. Iowa was almost twice as [...]

13 Feb, 2014

Questionable Autopsy Could Lead to Exposure for Physician

2018-04-23T23:57:55-05:00February 13th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

 In an opinion released last week by the Nebraska Supreme Court, it indicated that a forensic pathologist who performed a poor autopsy could be liable for malicious prosecution when that autopsy formed part of the basis of criminal charges against a daycare provider. In McKinney v. Okoye, 287 Neb. 261 (2014) the Nebraska Supreme Court considered a malicious prosecution claim brought against a forensic pathologist whose testimony contributed to charges [...]

14 Jan, 2014

Nebraska Slowly Buying into Obamacare

2018-04-23T23:57:56-05:00January 14th, 2014|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

The Omaha World Herald recently reported that Nebraska has seen a surge in applicants for coverage under the Affordable Health Care Act aka Obamacare.  In its article, Obamacare: Health Plan Enrollment Surges in Iowa, Nebraska, the World Herald reports that, in Nebraska, 14,464 people had enrolled in a plan by the end of December.  That's more than seven times as many as the 1,965 Nebraskans who had enrolled through the [...]

29 Oct, 2013

Do Furloughs Harm Public Health?

2018-04-23T23:57:56-05:00October 29th, 2013|Health Care Law, Midwest Medical Legal Advisor|

The government shutdown impacted more than most people would think, including, as Sarah Macdissi noted in her last post, food safety. During the government shutdown, all inspections of domestic food except meat and poultry were halted: the Centers for Disease Control and Prevention furloughed more than two-thirds of its workers.  What did this mean?  No issuing of daily updates on global outbreaks to world health officials; 9 of 10 global disease detection systems [...]

18 Sep, 2013

Thanks, but no thanks: Insurance companies opting out of Obamacare exchanges.

2018-04-23T23:57:56-05:00September 18th, 2013|Health Care Law, Midwest Medical Legal Advisor|

Aetna, in announcing last week that it will not participate in the state-based health insurance exchange in New Jersey, is just the latest insurer to pull out of such exchanges.  A big deal?  Maybe.  As noted by CNN, while Aetna has 1.1 million customers, just 2600, that’s .2 per cent, buy individual plans.  But, this could signal a larger trend.  Neither Aetna nor Conventry Health Plans will be represented on [...]

27 Aug, 2013

Think twice before accepting that drug rep pen.

2018-04-23T23:57:56-05:00August 27th, 2013|Health Care Law, Midwest Medical Legal Advisor|

Going into effect earlier this month, the Physician Payments Sunshine Act will require pharmaceutical companies to report most of the payments and gifts they give to doctors and teaching hospitals.  The major exception to the Physician Payments Sunshine Act?  Compensation from businesses to doctors speaking at accredited, continuing medical education events. According to The Wall Street Journal, information regarding payments from pharmaceutical companies to doctors and teaching hospitals will be [...]

6 Aug, 2013

When Enough is Enough: a Growing Number of Doctors Say “NO” to Medicare

2018-04-23T23:57:56-05:00August 6th, 2013|Health Care Law, HITECH, Midwest Medical Legal Advisor|

A growing number of doctors are declining to participate in the Medicare health program, due in part to disagreements with the program’s rate policies and an ever increasing list of regulations.  The current number of doctors refusing to accept Medicare may still be an immaterial figure; however, this growing trend should be cause for alarm. For the first time, the agency administering the Medicare program has released figures documenting this [...]

29 Jul, 2013

The Threat of HIPAA Penalities

2018-04-23T23:57:56-05:00July 29th, 2013|Health Care Law, HIPAA, Midwest Medical Legal Advisor, Risk Management|

Does inadvertent disclosure of protected health information keep you up at night?  It should.  Unlawful disclosure, or allowing unauthorized access to protected health information, case be costly. Since 2009, 65,000 breach reports, where protected health information is exposed or wrongfully accessed, have been filed with Health and Human Services Office of Civil Rights.  The vast majority of these breaches do not lead to any type of formal enforcement action.  But the Office of [...]

17 Jul, 2013

More doctors are selling their practices

2018-04-23T23:57:56-05:00July 17th, 2013|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

More and more doctors are selling their practices due to rising business expenses and shrinking payouts from insurers.  The buyers?  Hospitals. According to a recent article from CNN, Doctors Bail out on their Practices, the number of physicians selling their practices to hospitals is up 30% to 40% in the last five years.  In the normal transaction, the selling doctor will then become an employee of the hospital along with [...]

5 Jul, 2013

Key requirement of the Affordable Care Act delayed

2018-04-23T23:57:56-05:00July 5th, 2013|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

On Tuesday, the U.S. Treasury Department announced a one-year delay in a key provision of President Barack Obama's sweeping health care law, the Affordable Care Act.  It postponed the provision that required businesses with more than 50 employees to provide their workers with health insurance or face fines.  The Treasury Department explained in its blog that the government needs time to simplify reporting requirements, and businesses need breathing room to adapt [...]

25 Jun, 2013

The Impact of Unnecessary Surgery

2018-04-23T23:57:56-05:00June 25th, 2013|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management, Tort Reform|

A recent article in USA Today posits that doctors perform thousands of unnecessary surgeries every year.  It claims that unnecessary surgeries might account for 10% to 20% of all operations in some specialties, including a wide range of cardiac procedures.  It generally cites three reasons as the cause of the problem: - doctors who enrich themselves by bilking insurers for operations that are not medically justified; - doctors who simply lack the competence [...]

14 Jun, 2013

The National Practitioner Databank

2018-04-23T23:57:56-05:00June 14th, 2013|Disciplinary Actions, Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

No doctor wants to be the target of a medical malpractice lawsuit.  Nor does any doctor want to be reported to the National Practitioner Databank.  I recently argued before the Eighth Circuit Court of Appeals in an attempt to remove a doctor’s name and report from the Databank. My main take-away from this experience: if and when you receive notice that you are the subject of a disciplinary proceeding where [...]

24 May, 2013

Omaha and Lincoln area hospitals shorted $1 million

2018-04-23T23:57:56-05:00May 24th, 2013|Health Care Law, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act|

In an interesting article this morning in the Omaha World Herald, it reports that nine Omaha and Lincoln area hospitals had approximately $1 million in Medicare payments withheld due to the number of patients returning to the hospitals within a month of being released. Medicare has recently targeted these types of readmissions, which cost roughly $17 billion dollars a year.  The government is penalizing hospitals with high readmission rates within [...]

14 May, 2013

EMTALA and the “appropriate medical screening.”

2018-04-23T23:57:56-05:00May 14th, 2013|Midwest Medical Legal Advisor|

Congress enacted the Emergency Medical Treatment and Labor Act (“EMTALA”) in 1996 in response to claims that hospital emergency rooms were refusing to treat patients with emergency conditions but no medical insurance.  EMTALA imposes duties on covered facilities, hospitals which accept Medicare funding with an emergent care department, to: (a) provide an “appropriate medical screening examination” for those who come to an emergency room seeking treatment, and (b) provide, in [...]

3 May, 2013

Nebraska Supreme Court rules that Physical Therapists are professionals

2018-04-23T23:57:56-05:00May 3rd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Earlier, we discussed whether Physical Therapists are professionals and whether a slip and fall can implicate professional negligence.  Last week, the Nebraska Supreme Court, in Churchill v. Columbus Community Hospital, agreed with my unofficial poll where a full 100% of the therapists polled considered physical therapists to be professionals (full disclosure: my polling sample size was one) and found that a slip and fall at a therapist’s clinic implicated professional negligence. The Churchill [...]

12 Apr, 2013

Nevada’s Runaway Jury

2018-04-23T23:57:56-05:00April 12th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

A Nevada jury says the state’s largest health management organization is liable for $24 million in compensatory damages to three plaintiffs in a negligence lawsuit stemming from a hepatitis C outbreak that became public in 2008. That was not all.  Unlike Nebraska, Nevada allows punitive damages.  The plaintiffs’ lawyer asked the jury to hold Health Plan of Nevada and Sierra Health Services responsible for another $1 billion in punitive damages [...]

3 Apr, 2013

Independent Medical Examinations

2018-04-23T23:57:56-05:00April 3rd, 2013|Litigation Tips, Midwest Medical Legal Advisor|

Independent medical examinations are a “hands on” way to evaluate the injuries claimed by a plaintiff.  With the ability (with some limits) of hand-picking the examiner, an IME is a great way to strengthen the defense of a given case. When a plaintiff has placed his medical condition in controversy, and the defending party has good cause, an independent medical examination of the claimant should be allowed. According to Rule [...]

22 Mar, 2013

Oregon passes law allowing presuit mediation of malpractice claims

2018-04-23T23:57:56-05:00March 22nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

Oregon recently passed a law, Senate Bill 483, creating a new mediation process for patients injured by medical mistakes.  The law allows injured patients to confidentially discuss, at a mediation, their claim and a possible settlement with the medical provider where the alleged negligence occurred.  What is the upside to this bill?  Participation is obviously voluntary.  Most significantly, the discussions would not be admissible in court if a lawsuit is [...]

12 Mar, 2013

Kansas: 1 Missouri: 0. The score on the constitutionality of non-economic damage caps

2018-04-23T23:57:56-05:00March 12th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Kansas recently became the eighteenth state to hold that statutory caps on non-economic damages are constitutional.  The court in Miller v. Johnson, No. 99,818 (Kan. Oct. 5, 2012) held that a Kansas statute did not violate the plaintiff's right to a trial by jury, due process, or equal protection, nor did it violate the separation of powers. The Miller court cited a number of familiar reasons for upholding the statutory cap [...]

1 Mar, 2013

Issues with high-low agreements in the medical malpractice context

2018-04-23T23:57:56-05:00March 1st, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Should a high-low agreement waive the right to appeal?  Waiving the right to appeal, and the finality that this brings, is a potential benefit.  However, giving up the right to challenge any error or impropriety in the proceedings has its own risks, including dealing with an overzealous opposing attorney, who may be more willing to push the envelope at trial, knowing that an appeal has been waived.  It is at [...]

15 Feb, 2013

High-low Agreements in the Medical Malpractice Context

2018-04-23T23:57:57-05:00February 15th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management|

In negotiating a high-low agreement in the medical malpractice context, there are any number of issues to consider, including whether a settlement pursuant to such an agreement is reportable to the National Practitioner Data Bank (“NPDB”), whether to waive post-trial motions and the right to appeal, how to deal with comparative fault, taxation of costs, and a hung jury. Generally speaking, a high-low agreement is a contract used to limit [...]

8 Feb, 2013

Court Hears Argument on Whether Physical Therapists are Professionals

2018-04-23T23:57:57-05:00February 8th, 2013|Midwest Medical Legal Advisor|

"Eyes and ears are poor witnesses when the soul is barbarous."  This is the quote that stares down at those presenting oral argument before the Nebraska Supreme Court.  In a dimly lit room, with wood paneled ceiling, concrete walls, seemingly ancient tapestries, and seven learned judges just waiting for their opportunity to test the merits of a position, this quote completes the ambience of this hall of higher jurisprudence. In [...]

29 Jan, 2013

What is Malpractice?

2018-04-23T23:57:57-05:00January 29th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

What constitutes “malpractice?”  If a patient slips and falls while at the doctor’s office, does that implicate professional negligence?  Generally speaking, malpractice is defined as treatment by a doctor in a manner contrary to accepted standards of care which results in injury to the patient.  In Nebraska, medical malpractice and professional negligence are defined as follows: "Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider [...]

16 Jan, 2013

Are Physical Therapists Professionals?

2018-04-23T23:57:57-05:00January 16th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

According to the U.S. Bureau of Labor Statistics, there were 198,600 physical therapists in 2010.  Over the next 10 years, that number is expected to grow by 39%.  If you ask any physical therapist if he or she consider themselves to be a professional, the vast majority would likely answer in the affirmative.[1]  In my unofficial poll, a full 100% of the therapists polled considered physical therapists to be professionals.  [...]

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