25 Jan, 2024

AI: Powerful Collaborators, but Not Managers

2024-01-25T11:34:59-06:00January 25th, 2024|Artificial Intelligence, Corporate Law, Latest News, Risk Management|

So warned IBM in 1979 in its internal training materials. 45 years later, artificial intelligence, at least in the news, cannot be escaped. From OpenAI’s ChatGPT large language model, to Midjourney’s text-to-image generator, the Internet abounds with tools that claim to be able to perform tasks that, until quite recently, required human creativity and spark. Is this something that we should fear? As the author is acutely aware, the creators [...]

17 May, 2022

When DHHS Comes Calling

2022-05-17T13:21:05-05:00May 17th, 2022|Disciplinary Actions, LDM MedMal Forum, Litigation Tips, Risk Management|

Every licensed health care provider dreads receiving that certified letter with the return address, “Nebraska Department of Health and Human Services, Investigations Division.”  Opening the letter doesn’t help matters:  “Dear sir or madam, we are gathering information regarding a complaint that has been made against you.  The complaint alleges that you blah, blah, blah.  Please provide your written response to this office no later than 14 days after receipt of [...]

6 Sep, 2019

Can a General Contractor Be Liable for a Subcontractor’s Employee’s Injury?

2019-09-05T09:08:32-05:00September 6th, 2019|Construction Contractor Advisor, Nebraska Construction Law, Risk Management|

The short answer is maybe.  Nebraska courts have long held that a general contractor can be held liable for a subcontractor’s employee’s injury, but only if the general contractor exercises significant control over both the worksite and the subcontractor.  The question becomes whether the general contractor’s conduct demonstrates this control. A general contractor that retains control over a subcontractor’s work has a duty to use reasonable care to prevent injuries [...]

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 [...]

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 [...]

28 Aug, 2014

No Sweeping Under the Rug

2018-04-24T00:00:14-05:00August 28th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

It happed in California several weeks ago.   After 2 ½ days of jury deliberation, the jury awarded a $4 million verdict against a hospital for allegedly covering up the cause of the post-operative death of a patient.  The jury did not find that the hospital committed malpractice and did not award punitive damages (which cannot be awarded in Nebraska). The patient had a surgical cervical disc.  Post operatively he had [...]

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 [...]

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 [...]

17 Feb, 2014

The Doctor’s White Coat Days Are Likely Numbered

2018-04-23T23:52:19-05:00February 17th, 2014|Health Care Law, Midwest Medical Legal Advisor, Risk Management|

What is thought to be one of the most common vehicles for spreading germs in a hospital?  The answer might surprise you: the white lab coat.  Also ranking high are neck ties and wrist watches worn by health care practitioners. The Society for Healthcare Epidemiology of America has released new guidelines  suggesting that the white lab coat be eliminated altogether or hung on an outside hook prior to entering a patient’s [...]

13 Aug, 2013

Risks of Social Media in Medicine

2018-04-24T00:10:06-05:00August 13th, 2013|Disciplinary Actions, Health Care Law, HIPAA, Midwest Medical Legal Advisor, Risk Management|

A twenty-year-old nursing student had finally realized her dream and was caring for patients on her pediatric oncology rotation.  She fell in love with the courage of her young patients.  One patient, in particular, captured her heart.  She took a picture of the three-year-old boy grinning from ear-to-ear despite his chemotherapy.  When she posted the picture to her Facebook page, she put the following caption: "This is my 3-year-old leukemia [...]

9 Aug, 2013

Covenants Not to Compete and Physician Employment Agreements

2018-04-23T23:52:20-05:00August 9th, 2013|Midwest Medical Legal Advisor, Risk Management|

Covenants not to compete are common in physician employment agreements but are they enforceable?  The American Medical Association (AMA) has taken the position that physician non-compete agreements impact negatively on health care and are not in the public interest. Stopping short of completely prohibiting covenants not to compete, the AMA strongly discourages them.  In line with the AMA, Colorado, Massachusetts, and Delaware have passed laws invalidating contractual provisions restricting a [...]

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 [...]

19 Jul, 2013

Prescribing of Controlled Substances Under Nebraska Law

2018-04-23T23:52:20-05:00July 19th, 2013|Litigation Tips, Midwest Medical Legal Advisor, Risk Management|

Under Nebraska law, it is unprofessional conduct to prescribe controlled substances to oneself, a spouse, child, parent, sibling, or “any person living in the same household as the prescriber.”  The only exception to this prohibition is in times of medical emergency.  The phrase "medical emergency" is not defined under the statutes - although it would presumably entail situations in which a family member would not have sufficient time to seek treatment elsewhere. The way [...]

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 [...]

18 Jun, 2013

Protecting Emergency Services Providers from Communicable Diseases

2018-04-23T23:52:20-05:00June 18th, 2013|Health Care Law, Midwest Medical Legal Advisor, Risk Management|

It’s a scene straight from a movie – someone is injured and you rush to render aid.  Of course, there’s blood – and with blood comes the potential exposure to communicable diseases.  So, what should you do if you do not know whether the person you have been assisting may have placed you at risk? The Nebraska statutes and regulations provide some protection to emergency services providers (including individuals rendering [...]

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 [...]

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 [...]

30 Apr, 2013

Hospital Policies: Will They be a Burden or a Benefit to You in Litigation?

2018-04-24T00:10:53-05:00April 30th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Hospital policies are adopted for the purpose of providing a safe environment and quality care to patients.  They are also adopted as a means of preventing liability.  It is becoming increasingly common, however, for policies to be used against health care facilities and providers when litigation arises.  By applying a literal interpretation to a policy that does not provide any flexibility in its terms, the plaintiff is able to argue [...]

26 Apr, 2013

The Debate Over Work Hour Restrictions for Doctors in Training

2018-04-23T23:52:20-05:00April 26th, 2013|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Time magazine recently published an article highlighting the controversy surrounding work hour restrictions placed upon doctors in training.  Work hour restrictions were initially enacted by the state of New York in 1987 in response to the death of an 18 year old female, caused by a medication prescribing error made by a resident in the middle of a 30 hour work shift.   As a result of the 18 year old’s death, [...]

26 Mar, 2013

Expanding Physician-Patient Confidentiality

2018-04-23T23:52:20-05:00March 26th, 2013|HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

On December 20, 2012, the Florida Supreme Court expanded the already far reaching scope of doctor-patient confidentiality.  In the case of Hasan v. Garvar, 2012 WL 6619334 (Fla.), a patient sued a dentist (referred to as Dentist #1 for purposes of this post) after the dentist failed to diagnose and treat a dental condition resulting in a bone infection. The patient subsequently sought treatment from a second dentist.  (Dentist #2).  Dentist [...]

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 [...]

5 Mar, 2013

A Few Do’s and Dont’s of Prescribing Medicine

2018-04-23T23:52:20-05:00March 5th, 2013|Health Care Law, Midwest Medical Legal Advisor, Risk Management|

This topic hits close to home.  I am married to a third year resident who is starting his career as a hospitalist in August.  Friends and family frequently ask my husband to write them a prescription for various ailments rather than visit their primary care physician.  His response? "Sorry, unless you come visit me in my clinic and we establish a physician - patient relationship, the Statutes and Regulations in [...]

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 [...]

18 Feb, 2013

Don’t Let Your Medical Record Invite Litigation

2018-04-24T00:10:06-05:00February 18th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

The medical record can be your best friend or your worst enemy in litigation.  More than that, a well documented record can prevent a lawsuit altogether.  In order to see how, one must understand the process of how a lawsuit comes to pass.  Whenever there is an unexpected or untoward outcome, the patient or the patient's family will have many questions.  The first and best source to answer those questions [...]

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 [...]

2 Feb, 2013

Falling on Your Scalpel: Admitting Fault in Medical Malpractice

2018-04-24T00:10:06-05:00February 2nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

In a previous post, I discussed the potential use of an apology to head off medical malpractice litigation.  In this post, I will discuss situations where a complete admission of fault may help bring about a more favorable outcome in such litigation.  Before I do so, however, I want to direct you to a superb article on the subject of physician apologies that was published last week by the Boston [...]

15 Jan, 2013

Does It Pay To Say You’re Sorry?

2018-04-24T00:10:07-05:00January 15th, 2013|Midwest Medical Legal Advisor, Risk Management|

In the third hour of her deposition, and after over a year of litigation, a plaintiff who was suing over the death of her daughter said, “Nobody ever came to talk to us about what happened.  Nobody ever explained it to us.  It’s like they didn’t care.  We had to file this case to learn the truth.”  We hear these words, or words like them, over and over again in [...]

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