Federal Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim

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By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

 

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

Dentists Smiling as $80 Million Settlement Reached in Dental Supply Price-Fixing Class Action Suit

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On August 30, 2018, after two years of litigation, a group of dentists tentatively reached an $80 million settlement in a proposed class action accusing the country’s biggest dental supply companies of colluding to fix prices. The three dominant distributors, Henry Schein Inc., Patterson Cos. Inc. and Benco Dental Supply Co. Inc., allegedly artificially inflated prices on crowns, numbing agents, X-ray accessories and other products.

Artificially Inflating Prices.

In 2016, the three distributors were accused of artificially inflating prices on various dental supplies and equipment. Products at issue included supplies such as adhesives, implants, tooth brushes, pins and posts all the way to equipment such as imaging devices and dental chairs. Although there are hundreds of distributors and manufacturers of dental supplies and equipment, the defendants controlled approximately 80% of the market share. Click here to read my prior blog on this case and learn more.

The $80 million settlement comes roughly 30 months after the dentists first launched their lawsuits against the manufacturers. To learn more, click here to view the consolidated class action complaint  and the order in full.

Collusion?

In response to the suit, the three distributors accused the group of dentists of inaccurately portraying isolated actions as a nationwide conspiracy. However, a New York federal judge found reason to believe the distributors colluded to strong-arm lower cost rivals and boycott trade groups that worked with a newer distributor called SourceOne Dental Inc.

Despite reaching the settlement, the distributors deny any wrongdoing even though the Federal Trade Commission (FTC) also filed an administrative complaint against them in February 2018. In the complaint, the FTC accused the nation’s three largest dental supply companies of conspiring to refuse to provide discounts to buying groups representing small dental practitioners in violation of antitrust laws. To view the FTC’s press release, click here. Click here to view the FTC’s complaint.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals.

The Health Law Firm has attorneys who practice in the area of antitrust law and trade regulation. We have defended a hospital in federal court against allegations of violations of the antitrust laws, we routinely provide advice and opinion letters on antitrust and trade regulation matters, we have represented plaintiffs in law suits alleging anticompetitive behavior and violations of state and federal antitrust laws, we have given opinions on and been involved in litigation concerning the Lanham Act and the Robinson-Patman Amendments, and we routinely undertake litigation concerning restrictive covenants.

The attorneys of The Health Law Firm provide advice and representation concerning antitrust law, trade regulation, restraint of trade issues, and regarding deceptive and unfair trade practices. We routinely provide advice and analysis of proposed business ventures that include the foregoing. We have represented both plaintiffs and defendants in state court litigation and in federal court litigation in such matters.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Overley, Jeff. “Dentists Get $80M From Supply Cos. To End Collusion Case.” Law360. (August 30, 2018). Web.

“Dentists Get $80M From Supply Cos. To End Collusion Case.” InfoTech Consulting. (September 5, 2018). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: dental class action suit, complex healthcare litigation attorneys, legal representation for antitrust violations, representation for antitrust investigations, complex medical litigation lawyer, representation for complex litigation, representation for healthcare business litigation matters, employment contract representation, representation for physician dentist employment contract, healthcare contract review attorney, restraint of trade legal representation, representation for Board of Dentistry matters, Board of Dentistry representation, dentist lawyer,  attorney for dentists, Board of Dental Examiners legal counsel, representation for Federal Trade Commission (FTC) investigations, dental law defense lawyer, representation for dental law, representation for health care professionals, representation for dental clinics, health law defense lawyer, health defense attorney, legal representation for dentists, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, board of dentistry defense attorney, dental board defense legal counsel, representation for dentists, dentist defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

NYC Doctor Gets Prison Term for Posing as Clinic Owner in $30 Million Fraud Scheme

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On August 22, 2018, a doctor received a sentence of one year and a day in prison from a New York federal court for his part in a $30 million scheme to defraud Medicare and the state Medicaid program. The doctor admitted to posing as the owner of a medical clinic and falsely claiming to have seen hundreds of patients. He pled guilty on January 11, 2018, to health care fraud and conspiracy to commit health care fraud, mail fraud and wire fraud, the U.S. Attorney’s Office said.

Lies and Cover-ups.

The New York City doctor accepted responsibility for falsely posing as the owner of two medical clinics that were actually owned by a corrupt businessman, according to the U.S. Attorney’s Office for the Southern District of New York. Under New York state law, medical clinics must be owned and operated by a medical professional. The businessman was able to evade the requirements of the law by hiring doctors to pose as the owners of each clinic.

The corrupt businessman owned and operated six medical clinics in Brooklyn between 2007 and 2013 that fraudulently billed Medicare and Medicaid. Approximately $30 million was billed for services and supplies that were not provided, according to the indictment and other documents filed in federal court, as well as statements made during the doctor’s plea proceeding and sentencing.

Additionally, the doctor fabricated false medical records to support the fraudulent reimbursement claims and wrote prescriptions and referrals for medically unnecessary tests and supplies, the U.S. attorney’s office said.

The Punishment.

U.S. District Judge Lorna G. Schofield sentenced the doctor to three years of supervised release in addition to the prison term for his role in the scheme. He was also ordered to pay restitution of approximately $1.83 million and to forfeit $269,412 in unlawful gains. The three other defendants involved in this case, a doctor, a physical therapist and an occupational therapist, are scheduled to go to trial at a later date. Click here to learn more.

“The Medicare and Medicaid programs are intended to provide essential medical services to the elderly and the needy, not to enrich corrupt doctors and other fraudsters,” U.S. Attorney Geoffrey S. Berman said in a statement. “Today’s sentence sends a strong message that those who cheat Medicare and Medicaid, including physicians who abuse their licenses and professional oaths, will be held accountable.” You can view the U.S. Attorney’s press release here.

To read about a similar case of fraud, click here to read one of my prior blogs.

This is a Dangerous Pitfall of Which all Doctors and Dentists Must Be Aware.

This is the type of situation we often see in which a doctor or dentist is victimized by dishonest and corrupt scofflaws, especially here in Florida. Most often an older physician who is retired or semi-retired is asked to become the “medical director” or “dental director” of a clinic that is owned in whole or in part by someone else. The physician may not even know who its true owners are. Later the physician or dentist is asked to serve as the “president” or as a “director” of the company and his/her name is placed on all the corporate papers. The trouble really begins, however, when the true owner(s) places the physician’s or dentist’s name on corporate papers and licensing papers as an “owner,” “shareholder” or “member” of the business, when the physician has paid nothing for the business and is not truly the owner.

If a physician or dentist becomes aware of such a scheme and gets out of it as soon as she or her finds out, the physician or dentist may be able to avoid prosecution or liability. However, if the physician or dentist continues to do business with the true owners as an “owner on paper,” “shell owner,” or “sham owner,” (they all mean the same thing, “fraudulent owner”) then he or she can be in for some serious civil and criminal liability.

There can be serious criminal penalties, such as the one reported on in this blog. For example, in Florida, it is a felony for a non-dentist (meaning a dentist not licensed in Florida) to own or control a dental clinic in Florida. It is also a criminal offense for a layperson (or a business entity owned by lay persons), to own or control a medical clinic, unless it goes through the strict health care clinic license requirements that Florida law requires. If the clinic is owned or operated illegally (even if it’s “just on paper”), then all of the bills it issue are also illegal.

Contact Health Law Attorneys Experienced in Handling Medicare and Medicaid Fraud Cases.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes and other healthcare providers in Medicare and Medicaid investigations, audits and recovery actions. They also represent them in preparing and submitting corrective action plans (CAPs), requests for reconsideration, and appeal hearings, including Medicare administrative hearings before an administrative law judge.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hanson, Joyce. “Doc Gets Year In Prison For Role In $30M Medicare Fraud.” Law360. (August 22, 2018). Web.

“NYC Doctor Gets Prison Term for Role in $30M Fraud Scam.” Bloomberg Law. (August 22, 2018). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Medicare and Medicaid fraud representation, false claims attorney, false claims representation, representation for overbilling, representation for DOJ investigations, fraud defense attorney, representation for medicare issues, representation for Medicaid issues, Medicare lawyer, Medicaid lawyer, health care fraud investigation representation, health care fraud defense representation, Medicare fraud representation, health care professional representation, representation for physicians, representation for physician reimbursement, licensure defense attorney, professional license representation, licensure defense representation, representation for health care professionals, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Florida health law defense lawyer, owner on paper, shell owner, or sham owner, paper owner, Florida dental clinic ownership, health care clinic license

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

 

Locating a Healthcare Providers Service Organization (HPSO) Insurance Defense Attorney in Florida Company Cases

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We are sometimes told by the health professionals we represent especially pharmacists, licensed mental health counselors (LMHCs), advanced registered nurse practitioners (ARNPs), massage therapists and physical therapists that after they received a complaint regarding their license from the Florida Department of Health (DOH) they had difficulty finding an experienced attorney in Florida who would accept their professional liability insurance.  In this case, I am speaking specifically about Healthcare Providers Service Organization (HPSO) Insurance.

HPSO Insurance Helps Cover Costly Legal Fees.

The professionals who are covered by HPSO Insurance have excellent insurance coverage.  HPSO Insurance provides professional liability coverage that protects in the event of a lawsuit or negligence claim.  But much more often the professional receives a notice of an investigation, a subpoena for a deposition in someone else’s case, a demand because of an allegation of sexual harassment or sexual impropriety, a complaint because of a breach of medical records confidentiality or Health Insurance Portability and Accountability Act (HIPAA) Privacy complaint, or some other administrative type of action.

HPSO provides great coverage for these.  For example, HPSO currently reimburses up to $10,000 in legal fees and expenses just for representation of you at depositions.  HPSO currently reimburses up to $25,000 in legal fees and expenses for your defense in a DOH or Agency for Health Care Administration (AHCA) notice of investigation or complaint.  HPSO currently reimburses up to $25,000 in legal fees and expenses for your legal representation in defense of a complaint or investigation regarding breach of medical confidentiality.

If you are a pharmacist, own a pharmacy, are a massage therapist, own an assisted living facility (ALF), are a mental health counselor or a social worker, or you are one of the many other types of health care professionals who HPSO insures, it should be fairly easy to find experienced health lawyers to represent you, especially in Florida.

Our firm and our attorneys, including George F. Indest III, Michael L. Smith, Joanne Kenna, Carole C. Schriefer, Lance O. Leider, Christopher E. Brown and Danielle M. Murray, routinely represent licensed health care professionals, interns and students in all types of administrative investigations and hearings and in defending lawsuits and other actions that have been filed.  We also represent health facilities in license defense, survey complaints and administrative hearings.  We represent them throughout Florida, from Pensacola to Jacksonville, to Key West.  We also occasionally represent them in other states, as well.  We accept HPSO Insurance assignments.

 

It’s Time to Get Insurance.

It is very important for every health professional to carry insurance that covers any investigation, complaint or administrative hearing that might be filed or opened against your license.  You may think that you are covered for this by your employer, but you are not.  If your employer contradicts this, ask for a statement in writing that your employer will pay for your legal defense for any such matter arising during your employment.

What typically happens, especially in the case of a hospital employee, nursing home employee, pharmacy employee or corporate employee, is that the employer is the one who terminates the employee and then files a complaint with the DOH.  The DOH then opens an investigation against the health professional.  The employer is not going to pay your legal defense costs if the employer has reported you.

You may very well be out of work, out of money and face an investigation and complaint that could terminate your professional license and career.  You should not take this chance.  Insurance such as HPSO Insurance is inexpensive and reliable.  Buy it while you can afford it. After the actions have occurred, it is too late.

Contact an Experienced Health Law Attorney if You are Contacted by an Investigator.

Also, you should immediately contact an experienced health law attorney if you are telephoned or visited by any investigator, or if you receive a letter advising you that an investigation has been opened regarding your care.  Call immediately for advice before you speak with an investigator or provide any documents or statements of any kind.

You cannot and should not seek “legal advice” on what to do from the investigator, from a DOH employee, from your professional board or from any attorney representing any of them.  They are not your friends.  They are on the side against you. You should definitely not take any advice from them.

Understand all Insurance Policies are Not the Same.

If you have good insurance, it will pay for your legal expenses from the very beginning, so use it.  However, beware of cheap insurance policies from professional associations that do not provide any coverage for disciplinary complaints and licensure investigations.  Always check to be sure this is covered.  Get it in writing.  With some companies you have to pay an extra premium to obtain this coverage.  With some insurers, they do not offer it, and you have to purchase a completely separate policy covering just this.  It is worth it!  Do it!

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

Our firm regularly represents physicians, dentists, nurse practitioners, pharmacists, massage therapists, mental health counselors, registered nurses (RNs), assisted living facilities (ALFs), home health agencies, nurse practitioners, lab technicians, occupational therapists, physical therapists, social workers, physician assistants, psychologists and other health professionals in many different legal matters.

Services we provide include representation before your professional board in DOH investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company.  If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Do you have professional liability insurance? Why or why not. Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

More Than 7,000 Patients of Oklahoma Dentist Are Being Asked to Get Tested for HIV and Hepatitis

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The unsanitary practices of an Oklahoma dentist may have exposed more than 7,000 patients to HIV and hepatitis, according to a number of media sources and the Oklahoma Department of Health (DOH). Currently officials with the Oklahoma DOH are contacting all of the dentist’s patients since 2007, and urging them to get tested for blood-borne diseases. Since the news broke on March 28, 2013, the dentist has voluntarily closed his two offices and surrendered his dental license for 30 days.

Click here to read a copy of the letter from Oklahoma DOH warning the dentist’s patients to get tested.

We want to point out that these are just allegations made against the dentist at this point in time and have not been proven by the state.

Dentist Accused of Being a “Menace to the Public” in Complaint.

According to the complaint filed with the Oklahoma Board of Dentistry, the dentist is allegedly facing 17 allegations from The Board due to the violations against his practice.

Alleged charges against the dentist include:

1.  A patient testing positive for HIV and hepatitis C;

2.  The dental practice being unsafe, unsanitary and lacking of sterilization checks;

3.  Committing gross negligence related to decisions related to the dental health care of patients;

4.  Practicing dentistry without the proper display of licenses and certifications;

5.  Violation of provisions of the State Dental Practice Act by failing to keep a suitable record of dangerous drugs;

6.  Unlawful practices in authorizing dental assistants to practice dentistry; and

7.  Having open vials of medications and unsanitary dental materials in an unclean environment.

Click here to read the complaint.

Dentist Admitted to Not Handling Sterilization and Drugs Procedures.

According to the complaint, a device in the dentist’s office used to sterilize dental instruments wasn’t working properly. An inspector also found two separate sets of instruments. Each set was cleaned differently, one set of instruments was for patients known to have infectious diseases, and one set was for those not believed to have such diseases. Oklahoma DOH officials said the proper approach is for all instruments to be handled as if they contain viruses and infectious diseases.

According to an article in The New York Times, the dentist allegedly told officials during one inspection of his office that his staff handled all sterilization and drug procedures. Click here to read the entire article from The New York Times.

Dentist Faces Hearing at State Board of Dentistry.

According to the Oklahoma DOH, the dentist has been a state-licensed dentist since 1974, and an oral surgeon since 1977. He faces the possibility of having his license revoked, after a hearing on April 19, 2013, at the state Board of Dentistry in Oklahoma. This investigation is ongoing.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Comments?

What do you think of this dentist’s story? Are you curious as to how the practice got so bad? Please leave any thoughtful comments below.

Sources:

Oklahoma Board of Dentistry State of Oklahoma v. Wayne Scott Harrington, D.M.D. Case Number 13-005. Statement of Complaint. (March 28, 2013). From: http://www.thehealthlawfirm.com/uploads/OK%20Dentist%20Complaint.pdf

Ball, Brandi. “Tulsa County Dentist May Have Exposed 7,000 Patients to HIV, Hepatitis.” News on 6. (March 28, 2013). From: http://www.newson6.com/story/21820518/tulsa-county-dentist-may-have-exposed-patients-to-hiv-hepatitis

Oklahoma State Department of Health. “Tulsa Health Department, Oklahoma State Department of Health and Oklahoma Board of Dentistry Investigate Tulsa Dentist.” (March 28, 2013). From: http://bit.ly/ZwRhRT

Fernandez, Manny. “Tests Start for Patients of Dentist in Inquiry.” The New York Times. (March 29, 2013). From: http://www.nytimes.com/2013/03/30/health/dental-patients-in-oklahoma-warned-of-disease-risk.html

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.Copyright © 1996-2012 The Health Law Firm. All rights reserved.

What Should I Do If I Have Property That Is the Subject of a Seizure under the Civil Forfeiture Act?

Headshot of attorney George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The civil forfeiture of property has become a popular tool for state and federal agencies to fight alleged criminal activity.  It is a civil proceeding that permits the government to seize personal property if it is believed that the property is “proceeds of criminal activity.”  The civil forfeiture law allows government authorities, usually police authorities, to gain possession of a person’s property without any determination of guilt or innocence of the person involved.

What Actions Cause Property to be Seized?

Typically, a forfeiture action begins when personal property is seized after an arrest. During the raid government agents can take everything that could help build a criminal prosecution. This can include paper records, computer equipment, money, cell phones and cars.

We are seeing more cases where both local and federal law enforcement authorities are using the civil forfeiture laws to seize property in cases where there are allegations of Medicare fraud, Medicaid fraud, “pill mill” operations, pharmacies filling an excess number of pain management prescriptions (charged as “drug trafficking” by law enforcement), and physicians and clinics writing an excess number of pain management prescriptions (also charged as “drug trafficking” by law enforcement).

Actions to Take If Your Property is Seized.

If you are the subject of a seizure, always ask for an inventory of the items taken, obtain a receipt, and obtain the contact information of each agent or police official involved.  Act to preserve any property that is not seized.

Next, contact an attorney experienced in defending against such seizures right away.  You have a number of rights and opportunities to get your property back.  However, there is a very short time period to request a preliminary hearing on the matter.

Act Quickly to Regain Your Property.

We believe the government’s use of civil forfeitures is to shut down the alleged criminal and make it so the victim cannot hire an attorney. However, there are defenses and often the government exceeds the bounds of propriety. The key to success in civil forfeiture actions is to immediately consult with an experienced attorney after the property has been seized. Your best defense is to act quickly.

Contact Health Law Attorneys Experienced in Civil Forfeiture Cases.

The Health Law Firm routinely represents physicians, nurses, pharmacists, dentists, mental health counselors and other health providers in investigations, regulatory matters, licensing issues, litigation, civil forfeitures, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think of the Civil Forfeiture Act being used against health care professionals and health facilities? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Law Prohibits Control of a Dental Practice by a Nondentist

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Florida has long been a state that does not prohibit the corporate practice of medicine, unlike many other states. However, it does prohibit the corporate practice of dentistry.  The key provision in Florida law that establishes this is Section 466.028, Florida Statutes, but the Florida Board of Dentistry has also adopted administrative rules on this topic, as well.

What this means is that any corporation (or other type of business entity) that owns or operates a dental practice, under Florida law, must be one solely owned by and controlled by dentists. In this context, the term “dentists” means those licensed to practice dentistry in the state of Florida, with an active license.  Someone licensed in another state or who has a suspended or revoked license in Florida, would not meet that requirement.

Dentists Entering into Certain Types of Contracts Needs to Be Sure They Comply with the Law.

There may be certain types of contracts and agreements that a dentist or dental practice may legally enter into, especially ones that would provide administrative services or other types of non-professional services to the dentist.  These might include, for example, payroll services, staffing services (except for professional staff such as dental technicians), billing and collections services (provided the dentist retains final authority over such matters), marketing services, equipment leases (provided the dentists retains all control over the equipment), office leases, management services, or combinations of the above.  However, since any of these types of agreements may be worded so as to violate the law, a dentist should always have such an agreement reviewed in advance by his or her own experienced health attorney.  The dentist entering into any such contract must make sure he or she complies fully with the law.

Section 466.028(2), Florida Statutes, states that the purpose of the statute is to prevent any nondentists from attempting to influence or interfere with the professional judgment of the dentist.

Acts Prohibited by Law.

Acts specifically prohibited by the law include allowing a nondentist or business entity owned by a nondentist to:

1.    Employ a dentist or dental hygienist in the operation of a dental office;

2.    Control the use of any dental equipment or material while such equipment or material is being used for the provision of any dental services;

3.    Direct, control or interfere with a dentist’s clinical judgment;  and, specifically,

4.    Allowing any nondentist or organization owned by a nondentist to exercise control over:

a.    The selection of a course of treatment for a patient, the procedures or materials to be used as part of such course of treatment, and the manner in which such course of treatment is carried out by the dentist;

b.    The patient records of a dentist;

c.    Policies and decisions relating to pricing, credit, refunds, warranties and advertising; or

d.    Decisions relating to office personnel and hours of practice.

Violating Law is a Felony.

Any of these acts can result in disciplinary action against any licensed dental professional involved. More importantly, violation of this law is also a felony which may result in criminal prosecution for any person involved.  Contracts which violate the law are null and void.

Always have any contract relating to the operation of your dental practice reviewed by an experienced board certified health lawyer before signing it.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Did you know about this Florida Law that prohibits control of a dental practice by a nondentist? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Board of Dentistry Warns About Responding to or Consulting with Individuals Over Internet About Dental Issues

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At the Florida Board of Dentistry meeting held on November 15, 2013, one of the committee chairs discussed an issue that has arisen nationally that is causing dentists legal problems. The issue arises when individuals contact a dentist over the internet seeking “information” on a dental condition or problem, and possible treatment or procedures that can resolve these issues.

The concern is that the dentist may actually be diagnosing a dental condition or problem the individual has. The bigger concern arises if the individual contacting the dentist is in a different state from the one in which the dentist is licensed. Then the dentist is actually practicing dentistry in the state in which the individual is located.

In this blog I will discuss some of the issues a dentist can encounter when diagnosing a condition or problem over the internet. I will also talk about ways a dentist can reduce his or her risk.

Issues Dentists Can Face When Diagnosing a Condition Over the Web.

Diagnosing a non-patient over the internet can cause a myriad of different problems for the dentist involved, including these situations:

1. By diagnosing in a state in which the dentist is not licensed, he or she is engaging in the unlicensed practice of dentistry in that state. This can lead to criminal charges in that state and disciplinary actions in the state where the dentist is licensed.

2. Cases have arisen where incorrect diagnoses have been rendered because the individual failed to provide complete information, and the dentist failed to physically examine the individual or follow other procedures normally followed.

3. There have been instances where such individuals have filed complaints or claims against dentists for providing them information upon which they relied.

4. In most cases, a dentist’s professional liability (dental malpractice) insurance will not cover professional negligence in another state.

 

Recommendations to Reduce Risk.

I recommend that dentists take the following steps to help reduce risk if involved in providing information to non-patients over the internet or in the media (radio, television, newspaper, etc.):

1. Make sure that you have proper warnings and disclaimers that are included in every such e-mail communication or listserv communication you make.

A. Include the state in which the dentist is licensed/practicing and explain that the communication is not considered to be diagnosing, prescribing, treating or practicing any profession in any other state or jurisdiction.

B. Include a disclaimer or statement in every e-mail listserv or other communication with non-patients that you are providing general information for educational purposes only, and the individual must seek and follow the advice of a dentist in his or her geographic area to make any diagnoses.

C. Include that the person receiving the information cannot rely on it for treatment purposes since an actual physical examination must take place before any reliable information/recommendations can be made in any individual’s case.

2. Inquire with your professional liability insurer or agent to ask about “broad form coverage” and attempt to obtain coverage that includes educational activities, marketing activities and other similar activities. Make sure the “broad form coverage” also covers these activities in different states.

3. Make sure your professional liability insurance provides coverage for legal expenses involved in defending against administrative complaints and investigations initiated by any state or federal agency that could result in disciplinary action against you or your license. You probably need at least $25,000 in coverage for this. However, $50,000 or $75,000 in coverage for such matters is preferred. Buy this coverage separately if necessary. Lloyd’s of London provides such coverage separately.

4. Find out where the individual contacting you resides or is communicating from. Require complete information, including complete name, address and telephone numbers.

5. Be extremely reluctant to criticize care, services, procedures, materials or appliances used or prescribed by other dentists.

 

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you ever been asked to consult with a patient over the internet? Did you know all of these issues could up? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Dangerous Dentistry: What One Connecticut Dentist Did That Got His License Suspended

Headshot of attorney George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Connecticut officials have suspended the license of an Enfield, Connecticut, dentist after a patient apparently died in the dentist’s chair on February 17, 2014. In a single visit the dentist allegedly attempted to extract 20 teeth from a 64-year-old woman who had prior health issues on record. One of the dental assistants reportedly begged for the procedure to be cut short after the patient began gurgling and lost consciousness. CPR was performed on the unresponsive patient before she was transported to a local hospital where she was pronounced dead.

According to WGGB ABC40, the dentist faces a hearing before the Connecticut State Dental Board on June 18, 2014.

To read the article from WGGB ABC40, click here.

A Repeat Offender.

The state of Connecticut alleges that in addition to the botched extraction, the dentist also failed to properly respond when the patient’s oxygen levels dramatically dropped. According to New York Daily News, state records show a four-count petition claiming that the dentist “deviated from the standard of care in that he did not timely and/or properly respond to (the patient’s)… respiratory distress and/or cardiopulmonary distress.” The patient’s official cause of death is yet to be formally determined.

The dentist’s license, issued by the state of Connecticut in 2003, was suspended April 21, 2014, pending the hearing. This is not the first legal run-in for the dentist. According to New York Daily News, in December 2014 the dentist was performing a procedure when his patient began to “aspirate the throat pack” and was rushed to a nearby hospital. The patient in this case spent six days in the hospital with heart and lung damage.

The dentist was also sued for malpractice by a former employee in 2009. Shoddy dental work was cited as the claim. The ruling ended in an out-of-court settlement. To read more from the New York Daily News article, click here.

Take ESOs Seriously.

An emergency suspension order (ESO) can be issued when a healthcare professional is posing a threat to the public. In this case, the dentist had a lengthy past of legal issues that would inevitably draw attention to his practice as a hazard. It is important to note that when a practitioner exhibits a pattern of reckless behavior numerous times, an ESO commonly follows thereafter. When an ESO is issued, a practitioner must immediately cease all practice until the suspension is lifted. Even an alleged case of malpractice can deem a healthcare practitioner an ESO. Receiving an ESO is a very serious matter. Many healthcare practitioners tend to overlook the severity of this action. You need to consistently practice proper ethics and install a system of checks and balances within your office to ensure the protection of your practice and license.

As a professional, you should take any and all necessary precautions to protect your license and reputation. Proactively avoid any irregular behaviors or fraudulent actions that could put your license at risk. If you find yourself in a situation where you are served an ESO it is vital that you immediately hire a professional and experienced healthcare attorney to represent you. If it’s a matter of not being able to afford the expenses in hiring an attorney, look at it this way: your livelihood is on the line, you can’t afford NOT to.

Anytime you suspect a claim or a complaint may be filed against you, immediately hire an attorney experienced in such matters.

Comments?

Emergency suspension orders are a common concern for healthcare professionals and their careers. What types of regulations, guidelines or practices do you mandate in your office in order to avoid a potential crisis such as an ESO? Do you have any personal experiences in dealing with ESOs? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Emergency Suspension Orders and Other Licensure Actions.

The attorneys of The Health Law Firm are experienced in handling licensure and disciplinary cases, including emergency suspension orders, administrative complaints, investigations, administrative hearings, investigations, licensing issues, settlements and more. If you are currently facing adverse action by the DOH contact one of our attorneys by calling (407) 331-6620 or (850) 439-1001. You can also visit our website for more information at www.TheHealthLawFirm.com.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

“Conn. Suspends Enfield Dentist’s License After Patient Death.” WGGB ABC40. (May 19, 2014). From: http://www.wggb.com/2014/05/19/conn-suspends-enfield-denists-license-after-patient-death/

Goldstein, Sasha. “Connecticut Dentist Suspended After Patient Dies While Having 20 Teeth Pulled in One Visit.” New York Daily News. (May 27, 2014). From: http://on.flatoday.com/1vBJZAd

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

 

 

Dentists: Tightened Controls on Prescribing to Medicare Part D Patients Could Affect Your Practice

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Starting June 1, 2015, Medicare Part D will no longer reimburse patients or pharmacies for prescriptions unless the dentist opts in and enrolls in Medicare, or opts out and enters into a private contract with the patient. This measure is part of a rule finalized by the Centers for Medicare and Medicaid Services (CMS). The purpose of the rule is to assist CMS in cracking down on doctors, dentists and other health care providers that are improperly prescribing drugs to Medicare patients.

Medicare Part D plans provide supplemental optional coverage for prescription medication used in dentistry, are administered by private health plans and are paid for by way of premiums. As a dentist, if you have patients with Medicare Part D, you need to choose whether to enroll as a Medicare provider or to opt out. Click here to read the final rule from CMS.

Specifics of the New Rule.

Dentists have until June 2015 to either enroll in Medicare or formally opt out. When a dentist enrolls, the government verifies his or her professional license and credentials, and checks his or her criminal history. In addition, the final rule expands rewards and incentive programs focusing on participation in activities that promote improved health, efficient use of health-care resources and preventing injuries and illness.

One new stipulation is that the federal government has the authority to expel physicians from Medicare if found to be prescribing drugs in an abusive manner or in violation of Medicare rules. In addition, CMS will be able to terminate a dentist’s Medicare enrollment if his or her Drug Enforcement Administration (DEA) certification has been revoked, or if the state licensing board has stripped his or her authority to prescribe drugs.

To read more on how abusive prescribing patterns will be determined, click here.

Enrolling Versus Opting Out.

If you enroll in Medicare Part D as a treating provider, then you are going to be subject to increased oversight and regulations, including:

– Fraud investigations;
– The minimum patient record retention increases from four to five years;
– You must be careful when denying services to Medicare recipients;
– You can’t charge Medicare for missed appointments; and
– You may have a percentage of your Medicare reimbursement withheld beginning next year if you don’t have electronic health records (EHRs).

On the other hand, if you opt out of part of Medicare, then you opt out of other parts as well, which may lead to a loss in revenue and disgruntled patients.

Examine Your Practice and Make Your Own Decision.

Your decision to enroll in or opt out of Medicare should be determined by the types of patients you treat and the services you provide. If your practice consists of patients under the age of 65, you may be unaffected by this rule. However, if you practice in an area with an older population, Medicare coverage is more likely to be part of your practice. The important point is to understand how it may or may not affect your practice’s bottom line. If you need some guidance or have questions, call an attorney experienced in representing dentists.

Comments?

Will this final rule affect you? If so, how? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide deposition coverage to dentists, dental hygienists and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1999-2015 The Health Law Firm. All rights reserved.

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