Don’t hesitate to call lawyer early for advice
When legal trouble is lurking, put your attorney on speed dial
Plastic Surgery Practice Advisor
Volume 1, Number 4
November 2005
Everyone knows that when a patient threatens to sue for malpractice, you should immediately pick up the phone and call your attorney and your insurer. Ditto for when you’re served with court papers, or if state and federal regulators start nosing around your practice. But those are only the most obvious times to call your legal counsel, experts say, and you can save yourself a lot of grief by picking up that phone more often.
Many plastic surgeons who go through a bad legal experience could have avoided it, or at least mitigated the damage, by calling for legal help sooner than they did, says John B. Reiss, PhD, JD, co-chair of the Health Law Practice Group at Saul Ewing in Philadelphia. Reiss is the former director of the Office of Health Regulation in the U.S. Department of Health and Human Services. One of the biggest mistakes that plastic surgeons make with their attorneys is not calling soon enough, he says.
"They try to save a few bucks by not calling their attorney early on, and they can pay for that mistake later," he says. "Whatever it costs to have a talk with your attorney, it’s probably worth it whenever you’re wondering about a potential problem. If you’re worried about something, go with your instincts and call for a short talk."
Even in the most obvious "get my lawyer on the phone!" scenario -- a patient suing for malpractice -- you should call as early as possible, Reiss says. Don’t wait until the patient actually threatens to sue, and certainly don’t wait until the papers are served.
"As soon as you know that something isn’t quite right or if someone is unhappy for some reason, it’s probably a good idea to check with your lawyer even at that point," he says. "That wouldn’t be a time when you would notify your insurer necessarily, but it’s not a bad idea to give your lawyer a heads up."
A plaintiff’s attorney who frequently sues plastic surgeons echoes that advice. Michael Cogan, JD, a partner with Cogan & McNabola in Chicago, says you shouldn’t even wait for the patient to express any dissatisfaction if you know that the outcome was less than optimal. Let your attorney know right away when surgery didn’t go well.
At that point, the lawyer might provide advice on what records to keep, how to interact best with the patient, and what actions might prevent the situation from escalating to litigation. Cogan says your attorney may simply ask that you keep him or her informed and that no special action is needed yet. You’ve still done the right thing by alerting legal counsel.
Joint ventures mean potential trouble
Reiss notes that there are plenty of other scenarios that should prompt a call to your attorney, either to ask for help or just to keep the lawyer in the loop in case something crops up in the future. Payment issues can be less of a concern for plastic surgeons than for other health care providers who deal more with Medicare and Medicaid, but they can still be important for reconstructive surgery and any partnerships with other providers.
It also is important to remember that state prohibitions on self-referral and fee-splitting apply to plastic surgeons as much as any other physicians, says George Bodenger, JD, also with Saul Ewing LLP. Even though the Medicare and Medicaid restrictions on self-referral and fee-splitting may not apply when your patients are paying out of pocket, states have their own versions of those same rules, so you need your attorney’s help to ensure you are not violating them.
Any time you are receiving state or federal funds for surgery, you must be sure you are following the rules to a T, Reiss says. State and federal regulators have little patience for a surgeon saying he just didn’t understand the rules, so all payment arrangements and partnerships need to be approved by your counsel.
"Also, you have obligations as an employer, especially if you have others associated with your practice who work with patients, such as aestheticians," Reiss says. "I recommend doing a background check on any new hires, and I suggest checking the Office of the Inspector General exclusion list. It can give you a clue to some important issues that could lead to legal difficulties."
An attorney can help with that kind of background check, Reiss notes. Any type of joint venture, such as providing capital to an ambulatory surgery center, should undergo a thorough vetting by your legal counsel, he says. Surgery centers introduce a host of regulatory issues, for instance, especially if they will treat Medicare patients.
"When that kind of venture is just a gleam in your eye, you should call your lawyer. And make sure it is a lawyer familiar with all these regulatory issues in health care," he says. "One problem I’ve seen is that people get comfortable with their business lawyer who handles all the typical concerns, but if you’re getting into a joint venture that brings some specialized concerns with stock or anti-kickback statutes, [it raises] a whole host of tough questions."
Surgery center, procedure room questions
Bodenger also cautions that plastic surgeons often run afoul of regulations that restrict what can be done in an ambulatory surgery center versus a procedure room. Consult your attorney to learn how you can structure your practice to avoid those problems, he advises.
"It won’t be a patient suing over it. It will be a state investigator who says you’re running your practice as if it is an ambulatory surgery center, and you have patients who are seeing you in your office and those waiting to be prepped for surgery sitting in the same room," he says. "That’s improper, and it can even lead to criminal charges. You need to have your lawyer involved when you’re considering anything beyond having privileges at a hospital and doing all your work there." Bodenger also has seen plastic surgeons who sell shares in their procedure room because their own procedures do not keep it busy all day. That is blatantly illegal, he says, but only an experienced health care lawyer will recognize it as a problem, he notes.
"When you start operating more outside the hospital, you’re getting into an area that is being scrutinized more and more by the state governments," he says. "Even if you’re not obligated to the Medicare Conditions of Participation, that doesn’t mean you’re immune from scrutiny under state law. You need your lawyer involved early on to navigate those rules, and you’ll end up with her practice being much more lucrative that way."
BME issues a concern
Mac Stewart, JD, an attorney with Stewart & Stimmel, a law firm in Dallas, TX, that represents plastic surgeons, says he always encourages surgeons to think broadly. You should call your attorney when you have any concern that could have a legal component, he says.
Those concerns can include such things as patient issues, Board of Medical Examiner (BME) issues, credentialing issues and payer issues. Stewart cautions that most physicians do not understand how complicated the regulatory framework is in health care.
When it is a BME action or any contact with a regulatory agency, the attorney should be consulted as soon as possible, Stewart says. The attorney may be able to head off an investigation, so it is never good to ignore something from the BME or to delay in responding. Stewart says most doctors don’t realize that they may have disclosure obligations to hospitals and payers if they get an BME investigation letter. (A failure to disclose can result in the payer canceling the contract and can allow the hospital to take punitive action that may not require a subsequent due process hearing.)
Stewart also strongly suggests calling in your attorney if a credentialing issue arises at a hospital, since a variety of procedural steps need to be taken by the doctor and the hospital. Moreover, how it is handled early on determines if the action is reportable to the National Practitioner Data Bank, payers and insurance carriers. And finally, and perhaps most importantly, Stewart offers this advice:
"If the Feds come calling, call ASAP!" Stewart says. "The bottom line is that there is a lot to think about in a medical practice, and it is always better to have thought about it in advance than trying to fix things later."
Bodenger agrees, and he points out that the up-front work is always cheaper than when you call the lawyer in to deal with a problem.
"If you wait until something is really wrong, the whole practice might be in crisis. And if it becomes a criminal matter, you might have a huge retainer. We’re talking about $50,000 or $100,000," he says. "I don’t need that kind of retainer to do the work on the front end. If you wait until there’s a risk of your practice being shut down, even temporarily, you’re in a completely different ball game."
Editor’s Note: Contact John Reiss at (215) 972- 7124, George Bodenger at (215) 972-1955, Michael Cogan at (312) 629-2900, and Mac Stewart at (214) 752-6995.
Reprinted with permission from Plastic Surgery Practice Advisor, published by National Health Information, LLC, Atlanta,
Copyright 2005. For subscription information, call 800-597-6300 or visit http://www.nhionline.net.
