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Physician Gets 40 Years For Illegally Prescribing More Than Half a Million Opioid Doses

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On October 2, 2019, a Virginia doctor received a 40-year prison sentence for illegally prescribing more than half a million opioid pills over 19 months. The U.S. District Court for the Western District of Virginia handed down the sentence to Joel Smithers, who was reported to have operated a “pill mill” out of Virginia, according to authorities. In addition to prison time, he was given an $86,000 fine and will serve three years of supervised release upon the completion of his prison time, according to court documents.

The sentence is lighter than it could have been. He was facing up to life in prison and a fine of more than $200 million, according to officials at the U.S. Justice Department. Click here to view the court’s sentencing document in full.

Alleged Pill Mill.

In May 2019, Smithers was convicted by a jury on more than 859 federal drug charges, including one count of possessing with the intent to distribute controlled substances and one count of maintaining a place for the purpose of unlawfully distributing controlled substances. Additionally, he was also convicted on hundreds of counts of unlawfully distributing a controlled substance without a legitimate medical purpose or beyond the bounds of medical practice.

When he opened his Virginia practice in 2015, Justice Department officials said he prescribed controlled substances to “every patient in his practice, resulting in over 500,000 Schedule II controlled substances being distributed.” Authorities say that he allegedly ran an operation that was less a medical practice and more an interstate drug distribution network.

Smithers was able to rake in over $700,000 in cash and credit card payments before the search warrant was executed at his office on March 7, 2017. Click here to read the press release issued by the U.S. Attorney’s Office in the Western District of Virginia.

To learn about a similar case involving two Florida doctors, click here.

The Problems I See.

I tell you that I take issue with many of the cases of this sort. I do not know enough about the actual facts of this physician’s case, but I can comment generally based on other similar cases I have had in the past. The government, both state and federal, has come down like a hammer on individual physicians and pharmacists in its over-zealous campaign to crack down on opioids. Many physicians and pharmacists, just trying to do a good job and legitimately treat their patients, are being caught up and persecuted. Chronic pain patients, many of whom are disabled veterans or people injured on the job, are unable to find physicians to treat them anymore or, if they can, any pharmacists willing to fill their prescriptions.

All sorts of under-handed techniques are used to try to make a case against conscientious health professionals who are merely trying to do their jobs. These do include the tactic seen in the case we are reporting on, which I call “bean counting.” The government comes in and, instead of proving how many allegedly illegal prescriptions were written or how many patients the physician gave the prescriptions to, breaks these out into the number of pills. This greatly exaggerates the case and these large numbers alone make it look like the doctor (or pharmacist) is doing something wrong or extremely way out of the norm.

For example, if a patient was receiving a low dose of a pain killer, say 10 mg Oxycodone every 4 to 6 hours, prescribed for four times a day, the ordinary monthly prescription for this medication alone (and such patients rarely receive one type of medication alone) this equates to 120 pills per month. If 10 mg pills are not available and/or the prescription is filled with 5 mg pills, instead, this is 240 pills a month. A years’ worth is 1,440 pills or 2,880 pills for just one patient. If the physician has 50 similar patients, this is 72,000 pills or 144,000 pills a year that the physician is writing and a pharmacy or pharmacies are filling.

This does not seem extreme or unusual to me, at all, and these amounts are on the low side. Yet just as government agencies love to inflate the “street value” or contraband drugs they seize, they love to break down the number of opioids a physician writes so it seems to a layperson to be extraordinarily large. Furthermore, a pain management physician or any other kind of physician cannot survive with just 50 patients a month. It is far more likely for a physician to have a thousand (1,000) or more patients a month. I call this type of numerical exaggeration “bean counting.” But it has put a number of physicians and pharmacists in jail.

Judges should not allow such exaggerated numbers to be introduced into evidence in the absence of further information that places them in context. It is unfairly prejudicial to the defendant to do so.

Contact Health Law Attorneys Experienced with DEA Cases.

The attorneys of The Health Law Firm are experienced in handling Drug Enforcement Administration (DEA) cases, board of medicine cases and board of pharmacy cases regarding allegations of over-prescribing and illegal prescribing. If you are currently being investigated or facing other adverse actions by the DEA 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.

Sources:

Booker, Brakkton. “Doctor Gets 40 Years For Illegally Prescribing More Than Half A Million Opioid Doses.” NPR. (October 2, 2019). Web.

“Virginia doctor could get life in prison today for prescribing 500,000 opioid pills.” RTV6. (October 2, 2019). Web.

Almasy, Steve. “Virginia doctor who illegally prescribed 500,000 opioid pills sentenced to 40 years in prison.” CNN. (October 2, 2019). 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.

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“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 © 2019 The Health Law Firm. All rights reserved.

By |2019-12-05T20:03:05-05:00December 26th, 2019|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Florida’s New E-Prescribing Law: How It May Affect You and Your Career

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In 2019, Florida’s Governor Ron DeSantis signed House Bill 831 (2019), Electronic Prescribing, into law. The new bill provides important requirements for prescribers to generate and transmit all prescriptions electronically upon their license renewal or by July 1, 2021, whichever is earlier. The bill will go into effect on January 1, 2020.

Summary of New Law, HB 831.

The new law applies to any health care practitioner who is licensed by law to prescribe a medicinal drug. The law, HB 831 sets forth the following general rule for prescribing:

If you are licensed to prescribe a medicinal drug, and you:

(1) Maintain a system of electronic health records; or

(2) Are an owner, employee or contractor of a licensed healthcare facility or practice that maintains a system of electronic health records and are prescribing in your capacity as an owner, employee or contractor of the licensed healthcare facility;
then you must electronically transmit your prescriptions unless an exception applies.

 

How the New Law May Affect You, a Licensed Health Professional.

The law requires prescribers to generate and transmit all prescription electronically, unless:

• The practitioner and the dispenser are the same entity;

• The prescription cannot be transmitted electronically under the most recently implemented version of the National Council for Prescription Drug Programs SCRIPT Standard;

• The practitioner has been issued a waiver by the Department of Health, not to exceed one year, due to demonstrated economic hardship, technology limitations that are not reasonably within the control of the practitioner, or another exceptional circumstance demonstrated by the practitioners;

• The practitioner reasonably determines that it would be impractical for the patient in question to obtain a medicinal drug prescribed by electronic prescription promptly and such delay would adversely impact the patient’s medical condition;

• The practitioner is prescribing a drug under a research protocol;

• The prescription is for a drug for which the U.S. Food and Drug Administration (FDA) requires the prescription to contain elements that may not be included in electronic prescribing;

• The prescription is issued to an individual receiving hospice care or who is a resident of a nursing home facility; or

• The practitioner determines that it is in the best interest of the patient, or the patient determines that it is in his or her own best interest to compare prescription drug prices among area pharmacies. The practitioner must document such determination in the patient’s medical record.

About half of Florida’s medical doctors must renew their licenses by January 31, 2020. Medical doctors that renew their licenses between January 1, 2020, and January 31, 2020, must comply with the new law by the date they renew their licenses.

View the full text of HB 831 – Electronic Prescribing here.

For more information, including a list of frequently asked questions, visit the Florida Board of Medicine’s website.

Contact Health Law Attorneys Experienced in the Representation of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid 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 www.TheHealthLawFirm.com.

Sources:

“ALERT: Electronic Prescribing Requirements.” Florida Board of Medicine. (October 21, 2019). Web.

Scott, Jeff. “What Florida’s new e-prescribing law means for you.” Florida Medical Association (FMA). (June 18, 2019). Web.

About the Authors: 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.
Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law
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: Board of Medicine representation, Board of Medicine attorney, Board of Medicine defense attorney, representation for Board of Medicine investigations, representation for Board of Medicine complaints, DEA hearing defense attorney, DEA investigation attorney, DEA hearing representation, DEA investigation representation, Board of Pharmacy representation, Board of Pharmacy investigation representation, Board of Pharmacy attorney, Board of Nursing representation, Board of Nursing attorney, Board of Nursing investigation representation, nurse attorney, representation for nurses, nurse defense attorney, Board of Dentistry representation, Board of Dentistry attorney, representation for dentists, dentist defense lawyer, representation for e-prescribing, physician attorney, health care professional defense attorney, representation for health care professionals, professional licensure defense attorney, professional licensure representation, licensure defense attorney, representation for licensure issues, license renewal representation, license renewal defense lawyer, pharmacy defense lawyer, representation for pharmacists, representation for pharmacies, review of The Health Law Firm, The Health Law Firm attorney reviews

“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 © 2019 The Health Law Firm. All rights reserved.

Florida Psych Hospital Accused of Cashing in on Baker Act Patients

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In September 2019, a report on an investigation by The Tampa Bay Times stated that a North Tampa psychiatric hospital might be more harmful than helpful to its patients. The Tampa Bay Times claimed the health facility exploited patients held under the state’s mental health law known as the Baker Act. The Baker Act allows the involuntary confinement of a person in a mental health facility for a limited period of time if that person presents a threat to himself or to others; however, there are many limitations on this and rights that such persons have. The center has routinely held patients inappropriately against their will, making millions of dollars in the process, the newspaper reported.

After analyzing hospital records, police reports, court records, and interviews with former patients, the Tampa Bay Times was able to show that the hospital tricked or used coercive methods to keep patients locked up. Additionally, some patients described getting virtually no psychiatric treatment while admitted, according to the story.

Violations of The Baker Act.

Patients are often checked in for 72 hours the Baker Act, the Florida law that allows mental health centers to detain patients who are at risk of self-harm. The 72 hour period is to allow time for psychiatrists to evaluate the patient to see if the patient meets criteria to be confin3ed beyond the 72 hours. After 72 hours, unless a psychiatrist has found otherwise, facilities cannot legally hold patients against their will.

Despite the law, the Florida psych hospital allegedly used loopholes in the statute to hold patients longer than the law permits, thereby running up their hospital treatment bills, according to the report. The investigation exposed that the hospital uses a variety of tactics to keep patients beyond 72 hours. Some patients were tricked into thinking they had waived their right to leave the facility. Others were forced to wait around for court hearings that never happened. The extended stays were proven to be very lucrative to the facility named in the news report. It reportedly had the fourth-highest profit margin of any Florida psychiatric hospital in 2017.

Following the investigation by the Tampa Bay Times, Florida lawmakers are now calling for government regulators to further investigate the facility. Click here for more information, including a letter sent by a state representative to the Centers for Medicare and Medicaid Services (CMS).

For more information on the Baker Act law, click here to read one of my prior blogs.

Click here to visit our Areas of Practice page on our website and learn more about specific Baker Act cases and how we can assist you in these matters.

Contact Health Law Attorneys Experienced in Handling Victims of Involuntary Confinement Through the Baker Act and Marchman Act.

The Health Law Firm represents individuals, families and friends in challenges to and hearings related to the Florida Baker Act and Marchman Act, when the basic criteria for confinement are not met and there is no medical necessity for further confinement.

Our firm has a process we follow to make sure that a person who should not be held under the Baker Act may be released in a very short time. If the basic criteria for a Baker Act confinement are not present, the person is not required to be held and should be released. If the person has been living independently for decades, has family and a support system available, and has had no prior mental health problems, the odds are he or she should not be involuntarily confined. We act immediately to begin our representation, to make the hospital and its physicians aware that we are representing you, and to take measures to obtain release. If required, we are prepared to file an emergency Petition for Writ of Habeas Corpus with the local Circuit Court to have you brought before the judge for an emergency release hearing. These cases can be time-intensive, require a great deal of immediate work, but can yield fast results in most cases.

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

Sources:

Bedi, Neil. “How one Florida psychiatric hospital makes millions off patients who have no choice.” Tampa Bay Times. (September 18, 2019). Web.

Harnes, Anna. “Florida Psych Hospital Holds Patients Captive To Make Millions In ‘Shocking’ Report.” Inquisitr. (September 21, 2019). Web.

Bedi, Neil. “Lawmakers call for investigations into Wesley Chapel psychiatric hospital.” Tampa Bay Times. (October 7, 2019). 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: Baker Act defense attorney, legal representation for Baker Act cases, legal representation for involuntary Baker Act confinement, legal representation for involuntary confinement, mental health confinement defense attorney, petition for Writ of Habeas Corpus, Baker Act attorney, Baker Act defense lawyer, legal representation for Florida Baker Act, Florida Marchman Act defense attorney, Florida Baker Act lawyer, mental health lawyer, mental health representation, legal representation for Baker Act law, representation for mental health facilities, representation for mental health professionals, psychologist defense counsel and legal representation, social worker legal counsel and mental health counselor defense attorney, The Health Law Firm, reviews of The Health Law Firm attorneys, The Health Law Firm reviews

“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 © 2019 The Health Law Firm. All rights reserved.

HHS Announces Proposed Rules to Reform Stark Law and AKS Regulations

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On October 9, 2019, the Centers for Medicare & Medicaid Services (CMS) and the Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued two proposed rules to reform the federal Stark Law (dealing with prohibited self-referrals) and Anti-Kickback Statute (AKS) (addressing giving or receiving any thing of value in exchange for a patient referral) regulations.

The long-awaited proposed rules aim to “modernize and clarify” federal laws relevant to value-based and patient coordinated care programs. The proposals would ease the compliance burden for healthcare providers across the industry while maintaining strong safeguards to protect patients and programs from fraud and abuse.

The Proposed Stark Rule.

The proposed rule that would further implement and clarify the Stark Law, “Modernizing and Clarifying the Physician Self-Referral” would, if finalized, create new exceptions to the existing Stark Law for value-based arrangements, according to CMS. These exceptions would apply broadly to care provided to all patients, not just Medicare beneficiaries, CMS said. The proposed rule also includes additional clarifications and guidance on key statutory terms and other technical compliance requirements.

For more info, click here to view the Stark proposed rule’s fact sheet issued by CMS.

The Proposed AKS Rule.

The proposed rule to further implement and clarify the AKS, “Revisions to the Safe Harbors Under the Anti-Kickback Statute and Civil Monetary Penalty Rules Regarding Beneficiary Inducements” would make several changes to the AKS and beneficiary inducement provisions of the Civil Monetary Penalties Law (CMP). These changes would include the addition of several new AKS safe harbors for certain remuneration exchanged between or among eligible participants.

The new AKS safe harbors include care coordination arrangements aimed at improving quality and outcomes; value-based arrangements with substantial downside financial risk; and value-based arrangements with full financial risk, according to OIG.

Click here to view the fact sheet issued by CMS to learn more about the proposed rule.

To view the press release issued by the HHS in full, click here.

Contact Health Law Attorneys Experienced in Handling Stark Law and Anti-Kickback Statute Compliance.

If you are involved in referring or providing DHS, your arrangements must be reviewed for compliance with Stark and other anti-fraud laws. Violations of these laws can carry severe financial and criminal penalties. One of the best ways to avoid these sanctions is to have your current or potential arrangement reviewed by an attorney who is experienced in these matters.

The Health Law Firm routinely advises healthcare providers on Stark compliance issues for practitioners and providers of all types of DHS. We can advise you on the legality of a particular arrangement and can assist with remedying any perceived compliance issues. Our attorneys also represent providers in cases of medical billing fraud, overbilling, Medicare audits, ZPIC audits and RAC audits, False Claims Act cases, and whistleblower/qui tam cases throughout Florida and across the United States.

They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

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

Sources:

Kearbey, Amy. “CMS Publishes Proposed Amendments To Stark Law Advisory Opinion Regulations.” The National Law Review. (October 9, 2019). Web.

HHS Press Office. “HHS Proposes Stark Law and Anti-Kickback Statute Reforms to Support Value-Based and Coordinated Care.” HHS.gov, U.S. Department of Health & Human Services. (October 9, 2019). Web.

“CMS, OIG Release Long-Awaited Stark, AKS Proposed Rules.”AHLA. (October 9, 2019). 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: Healthcare fraud representation, healthcare fraud lawyer, healthcare fraud defense attorney, Stark Law defense, Stark Law representation, Anti-Kickback Statute (AKS) representation, AKS defense, AKS lawyer, AKS representation, Centers for Medicare & Medicaid Services (CMS), CMS representation, CMS defense attorney, CMS lawyer, representation for CMS investigation, Whistle blower plaintiff-relator attorney, Qui tam suit plaintiff-relator attorney, False Claims Act suit plaintiff-relator attorney, Medicare audit defense attorney, Medicare audit defense legal representation, Medicare audit defense lawyer, Medicaid audit defense attorney, Medicaid audit defense legal representation, Medicaid audit defense lawyer, Medicaid Fraud Control Unit (MFCU) defense attorney, Medicaid Fraud Control Unit (MFCU) defense legal representation, Medicaid Fraud Control Unit (MFCU) defense lawyer, Medicare overpayment demand defense attorney, Medicare overpayment demand defense legal representation, Medicare overpayment demand defense lawyer, Office of Inspector General (OIG) investigation defense attorney, Office of Inspector General (OIG) investigation defense legal representation, Office of Inspector General (OIG) investigation defense lawyer, Civil Monetary Penalty defense attorney, Civil Monetary Penalty defense legal representation, Civil Monetary Penalty defense lawyer, Whistle blower suit defense attorney, Whistle blower suit defense legal representation, Whistle blower suit defense lawyer, Qui tam suit defense attorney, Qui Tam suit defense legal representation, Qui tam suit defense lawyer, False Claims Act suit defense attorney, False Claims Act suit defense legal representation, False Claims Act suit defense lawyer, representation for allegations of overbilling, representation for FCA investigations, Office of Inspector General (OIG) interview defense attorney, Office of Inspector General (OIG) interview defense legal representation, Office of Inspector General (OIG) interview defense lawyer, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“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 © 2019 The Health Law Firm. All rights reserved.

By |2019-12-05T20:42:16-05:00December 5th, 2019|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Tips to Prepare For Clinical Privileges and Peer Review Hearings Part 2 of 2

Attorney Indest headshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In Part 1 of this blog, I began a list of tips that should serve you well if you are notified by your hospital or medical staff that you are the subject of internal or external peer review hearings.

20 Tips For Successful Outcome in Peer Review Hearings (Continued):

10. If you are given the opportunity to meet with the reviewers or provide information to them, do so. If you haven’t been offered this, ask for it in writing.

11. Make sure any written response is provided in a typewritten letter formal not via e-mail, text or YouTube posting or handwritten note.

12. In your written statement or response, if you use any abbreviations, spell them out completely the first time you use them and place the abbreviation after, in parentheses. Remember, future reviews of your statement may not be physicians (e.g., a judge) or may not be in your medical specialty.

13. It is never too early to engage experienced health car legal counsel to assist you in such matters. But if you do, make sure you do hire an actual health law attorney who has experience with medical staff peer review hearings. This is no place for a plaintiff’s personal injury attorney, a criminal defense attorney or your tax, or business lawyer.

14. If you find out that your matter is being sent out to an external peer review organization you should retain an experienced health law attorney immediately and obtain your own medical expert review.

15. If the care being examined involved another physician as well as you, or if the care was of a patient referred by another physician, see if that physician supports the care you provided and will provide you a letter or statement saying that.

16. If the allegation being reviewed involves facts that you know are not true, see if you can obtain evidence of this. For example, I had a case where nursing staff filed a complaint against my client a male OB/GYN claiming that the mother of a minor female patient had demanded that her daughter only be examined by a female doctor. We are able to obtain an affidavit from the mother swearing that she had never stated that. The peer review matter was dismissed and closed.

17. If it appears that you are being targeted for repeated peer review complaints or investigations, it is time to get out of that place. Read the handwriting on the wall. However, see #1 above. Do not resign with any type of peer review pending.

18. Remember that peer review proceedings are supposed to be confidential. Therefore work through your legal counsel in obtaining outside reviews. Do not discuss the matter with those outside the medical staff.

19. Although the peer-review process is confidential, it is not supposed to be “secretive.” The person who is the subject of peer review should have access to the complaint and medical records involved. This should not be a Star Chamber proceeding. Make a polite written request for copies of such materials or to be allowed to review them and make notes.

20. In many cases, you may find that you did make a mistake, violate a policy or procedure, skip a step in an algorithm, fall below the standard of care, or otherwise screw up. Except in cases of the most egregious situations, your best course o action may be to admit this, explain how this happened, and outline steps you are taking to make sure it does not happen again. This is especially true when it is your first “offense” and you have many years of otherwise excellent performance. The medical staff usually wants to make sure that when a mistake occurs, the health provider has the ability to recognize it and learn from it.

Follow These Tips for The Best Results in a Peer Review Matter.

If you follow these tips, you have the best chance of coming out of the peer review without problems. However, in a really serious case, where many records are being reviewed and the allegations appear to be very serious, then it is most important to retain an experienced health care attorney at the earliest opportunity and take that attorney’s advice. You will be in for the fight of your professional life.

Click here to read Part 1 of this Blog.

Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in the Process of Peer Review Hearings.

If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you. The attorneys of The Health Law Firm have experience in most, if not all, types of “fair hearings” involving health care issues and health care providers.

At the Health Law Firm, we provide legal services for physicians and other health care providers. This includes nurse practitioners, nurses, dentists, psychologists, psychiatrists, mental health counselors, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers, and acquisitions. We also represent physicians and health care providers in complex litigation in both state and federal courts.

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

Keywords: Legal representation for peer review, peer review defense attorney, medical staff peer review confidentiality, medical staff fair hearing legal representation, medical staff fair hearing attorney, clinical privileges hearing defense attorney, clinical privileges hearing legal representation, clinical privileges hearing attorney, legal counsel on peer review process, legal representation for physician defamation, health law defense attorney, economic credentialing, sham peer review attorney, health law peer-review attorney, legal representation for peer review investigations, health care litigation legal counsel, complex health care litigation attorney, legal representation for health care employment issues, disruptive physician representation, legal representation for disruptive physicians, health care employment defense attorney, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys

“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 © 2019 The Health Law Firm. All rights reserved.

Tips to Prepare For Clinical Privileges and Peer Review Hearings Part 2

Headshot of The Health Law Firm's attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In Part 1 of this blog, I began a list of tips that should serve you well if you are notified by your hospital or medical staff that you are the subject of an internal or external peer review action.

Click here to read Part 1.

20 Tips For Successful Outcome in Peer Review (Continued):

10. If you are given the opportunity to meet with the reviewers or provide information to them, do so. If you haven’t been offered this, ask for it in writing.

11. Make sure any written response is provided in a typewritten letter formal not via e-mail, text or YouTube posting or handwritten note.

12. In your written statement or response, if you use any abbreviations, spell them out completely the first time you use them and place the abbreviation after, in parentheses. Remember, future reviews of your statement may not be physicians (e.g., a judge) or may not be in your medical specialty.

13. It is never too early to engage experienced health car legal counsel to assist you in such matters. But if you do, make sure you do hire an actual health law attorney who has experience with medical staff peer review actions. This is no place for a plaintiff’s personal injury attorney, a criminal defense attorney or your tax, or business lawyer.

14. If you find out that your matter is being sent out to an external peer review organization you should retain an experienced health law attorney immediately and obtain your own medical expert review.

15. If the care being examined involved another physician as well as you, or if the care was of a patient referred by another physician, see if that physician supports the care you provided and will provide you a letter or statement saying that.

16. If the allegation being reviewed involves facts that you know are not true, see if you can obtain evidence of this. For example, I had a case where nursing staff filed a complaint against my client a male OB/GYN claiming that the mother of a minor female patient had demanded that her daughter only be examined by a female doctor. We are able to obtain an affidavit from the mother swearing that she had never stated that. The peer review matter was dismissed and closed.

17. If it appears that you are being targeted for repeated peer review complaints or investigations, it is time to get out of that place. Read the handwriting on the wall. However, see #1 above. Do not resign with any type of peer review pending.

18. Remember that peer review proceedings are supposed to be confidential. Therefore work through your legal counsel in obtaining outside reviews. Do not discuss the matter with those outside the medical staff.

19. Although the peer-review process is confidential, it is not supposed to be “secretive.” The person who is the subject of peer review should have access to the complaint and medical records involved. This should not be a Star Chamber proceeding. Make a polite written request for copies of such materials or to be allowed to review them and make notes.

20. In many cases, you may find that you did make a mistake, violate a policy or procedure, skip a step in an algorithm, fall below the standard of care, or otherwise screw up. Except in cases of the most egregious situations, your best course o action may be to admit this, explain how this happened, and outline steps you are taking to make sure it does not happen again. This is especially true when it is your first “offense” and you have many years of otherwise excellent performance. The medical staff usually wants to make sure that when a mistake occurs, the health provider has the ability to recognize it and learn from it.

Follow These Tips for The Best Results in a Peer Review Matter.

If you follow these tips, you have the best chance of coming out of the peer review without problems. However, in a really serious case, where many records are being reviewed and the allegations appear to be very serious, then it is most important to retain an experienced health care attorney at the earliest opportunity and take that attorney’s advice. You will be in for the fight of your professional life.

Click here to read Part 1 of this Blog.

For more information, read one of my prior blogs on peer review hearings, avoiding the disruptive physician label and clinical privileges.

Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in the Process of Peer Reviews.

If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you. The attorneys of The Health Law Firm have experience in most, if not all, types of “fair hearings” involving health care issues and health care providers.

At the Health Law Firm, we provide legal services for physicians and other health care providers. This includes nurse practitioners, nurses, dentists, psychologists, psychiatrists, mental health counselors, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers, and acquisitions. We also represent physicians and health care providers in complex litigation in both state and federal courts.

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

Keywords: Legal representation for peer review, peer review defense attorney, medical staff peer review confidentiality, medical staff fair hearing legal representation, medical staff fair hearing attorney, clinical privileges hearing defense attorney, clinical privileges hearing legal representation, clinical privileges hearing attorney, legal counsel on peer review process, legal representation for physician defamation, health law defense attorney, economic credentialing, sham peer review attorney, health law peer review attorney, legal representation for peer review investigations, health care litigation legal counsel, complex health care litigation attorney, legal representation for health care employment issues, disruptive physician representation, legal representation for disruptive physicians, health care employment defense attorney, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys

“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 © 2019 The Health Law Firm. All rights reserved.

Tips to Prepare For Clinical Privileges and Peer Review Hearings Part 1

Attorney Indest headshotIf you are a physician or licensed other licensed health professional with clinical privileges in a hospital, chances are that one day you will be subject to peer review hearings. It may be a simple one-time matter based on an adverse outcome, or it may be a lengthy process involving a large number or your cases and records.

A peer review action may be initiated because of a patient complaint. It may be commenced because of complaints filed by hospital staff. It may be begun because of an unexpected adverse outcome. It may be begun because a patient files a medical malpractice lawsuit. It may result from a statistical review by the Utilization Review office or the Quality Improvement office.

This is part 1 of a 2 part blog series. Click here to read part 2.

A Notice of A Peer Review Should Not Be Treated Lightly.

Regardless of the source, or how petty or meritless it may seem, the health professional who is the subject of the peer review must treat it seriously. The actions you take may resolve the matter at a preliminary stage or it may cause an escalation to a hearing, adverse action, and a National Practitioner Data Bank (NPDB) Report, with career-ending results.

Tips to Survive Peer Review Hearings.

The following are tips that the individual who is the subject of a peer review action that may help you to resolve it at the lowest level feasible under the circumstances.

1. Do not resign or allow your clinical privileges to expire while the matter is pending. If you do so, this will be treated similarly to having your privileges revoked in clinical privileges matters and it will be reported out as such to the NPDB and other reporting organizations.

2. Provide a response or explanation if given the opportunity. But make sure you have reviewed the records, researched the medical issues as appropriate, and provide a well-organized, thought-out, objective and professional response.

3. Remember that this review is only about you and your actions. It is not about anyone else and this is not the place to make accusations about others. Discuss what you did (or did not do); do not point the finger at others and argue that they have done the same thing or worse.

4. Remain objective. Do not lose your temper and respond in a defensive, inflammatory matter. Assume that everyone is just trying to do their jobs.

5. In any written response, address the facts. Do not address what you think the motives of other individuals are.

6. Make sure your response is objective. Try to avoid subjective statements. Speak in terms of provable facts and what the record or other documents show. If you have documents (e.g., office records, algorithms, standards, guidelines) that those conducting the peer review do not have, attach them to your response.

7. Make sure your response is professional. Follow the rules for professional correspondence, that I wrote about in a prior blog.

8. If you don’t have all of the records on the matter, ask for them. Also, obtain and review any applicable hospital or department policies and procedures. Review the medical staff Rules and Regulations, as well.

9. Support and explain what you did logically and reference medical journal articles and medical treatises. Attach legible copies of any relevant medical literature (or relevant portions of it). Be sure to completely identify any medical literature you attach by including a title page, publication info, date, volume, pages, etc.

To find out the rest of the tips, don’t miss Part 2 of this blog series.

For more information, read one of my prior blogs on peer review hearings, avoiding the disruptive physician label and clinical privileges.

Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in Clinical Privileges and the Peer Review Process.

If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you. The attorneys of The Health Law Firm have experience in most, if not all, types of “fair hearings” involving health care issues and health care providers.

At the Health Law Firm we provide legal services for physicians and other health care providers. This includes nurse practitioners, nurses, dentists, psychologists, psychiatrists, mental health counselors, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions. We also represent physicians and health care providers in complex litigation in both state and federal courts.

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

Keywords: Legal representation for peer review, peer review defense attorney, medical staff peer review confidentiality, medical staff fair hearing legal representation, medical staff fair hearing attorney, clinical privileges hearing defense attorney, clinical privileges hearing legal representation, clinical privileges hearing attorney, legal counsel on peer review process, legal representation for physician defamation, health law defense attorney, economic credentialing, sham peer review attorney, health law peer-review attorney, legal representation for peer review investigations, health care litigation legal counsel, complex health care litigation attorney, legal representation for health care employment issues, disruptive physician representation, legal representation for disruptive physicians, health care employment defense attorney, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys

“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 © 2019 The Health Law Firm. All rights reserved.

Florida Oncology Center Wants Noncompete, Antitrust Suit Dismissed

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

On April 9, 2019, 21st Century Oncology filed a motion to dismiss a noncompete antitrust suit that a group of oncologists filed against them in a Florida federal court on March 2019. According to their dismissal motion, the physician plaintiffs are overreaching with their claim that 21st Century used unlawful methods to build a monopoly on radiation therapy. The cancer treatment center called their suit a bid to “dress up” simple employment claims as an antitrust case and added that it “strains law and fact.”

Background of the Noncompete Antitrust Suit.

On March 15, 2019, a group of Florida oncologists hit the cancer treatment center with a seven-count complaint in federal court. In the complaint, 21st Century faced allegations that they forced doctors to sign illegal non-compete agreements and held a monopoly over oncology and radiation services in three counties around Fort Myers, Florida. Additionally, The company also allegedly required doctors to sign “onerous” non-compete agreements that have suppressed competition, the suit alleges. To learn more about the antitrust suit, click here.

Visit our website and view the complaint filed by the oncologists.

21st Century Hits Back.

In its motion to dismiss, 21st Century stated, “the oncologists want out of their contracts, but do not want to abide by the reasonable [and] legitimate non-compete provisions.” The company also said the oncologists’ Sherman Act claims are barred by a four-year statute of limitations, which has already run out because the noncompetes were negotiated more than four years ago. According to the motion, the oncologists have failed to show that they’ve suffered an antitrust injury at all, meaning they have no standing to bring those claims

Additionally, 21st Century added that even if the claims had any merit, they should be dismissed because the oncologists “directed and participated in the very purported misconduct at the base of their claims.”

Click here to view 21st Century’s motion to dismiss.

For more information on restrictive covenants, non-compete agreements and employment contracts, click here to read one of my prior blogs and learn how The Health Law Firm can assist you.

Contact Health Care Attorneys Experienced in Negotiating and Evaluating Physician’s Complex Business Litigation, and Transactions.

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, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

Sources:

Boysen, Ryan. “21st Century Oncology Blasts Noncompete Antitrust Suit.” Law360. (April 9, 2019). Web.
Gluck, Frank. “21st Century Oncology facing continued legal troubles as it tries to put troubled past behind it.” Fort Myers News Press. (March 29, 2019). Web.

Leonard, Mike. “Cancer Center Fires Back in Radiation Oncology Non-Compete Case.” Bloomberg Law. (April 9, 2019). Web.

Atkins, Dorothy. “Fla. Oncologists Hit Cancer Centers With Antitrust Suit.” Law360. (March 18, 2019). 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: Noncompetition agreement litigation, representation for noncompetition agreements, noncompetition agreement litigation attorney, noncompetition agreement attorney, restrictive covenant attorney, representation for restrictive covenants, covenant-not-to-compete representation, health care litigation representation, representation for employer enforcement of restrictive covenants, representation for complex litigation, restrictive covenant defense attorney, complex healthcare litigation attorney, anti-trust legal counsel, physician employment agreements, health professional employment contracts, legal counsel for defeat of noncompetition agreement, physician employment contract litigation, health professional contracting, negotiating health business transactions, health care business contract attorney, health care professional contract litigation, healthcare complex business litigation, representation for physician agreements, representation for physician business transactions, representation for physician complex litigation, representation for antitrust The Health Law Firm reviews, The Health Law Firm attorney reviews

“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 © 2019 The Health Law Firm. All rights reserved.

Surgeon to Keep $17.5 Million Award, Despite Arrest for Soliciting Prostitute

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

On June 25, 2019, a Washington state appeals court sided with an arbitrator’s decision to award $17.5 million to a neurosurgeon who was fired after he didn’t disclose his arrest for soliciting prostitute.

Swedish Health Services had appealed the original arbitration ruling, arguing that the neurosurgeon violated the terms of his employment contract when he failed to notify the employer that he had been arrested in a prostitution sting. However, according to the reports, the neurosurgeon claimed that in 2017 Swedish Health Services actually fired him after he complained of the practices of a different doctor. The arbitral ruled in favor of the neurosurgeon and made the monetary award. Click here to read more.

Swedish Health Services argued that the arbitrator unfairly limited how much it could cross-examine the fired neurosurgeon about his “illicit behaviors” before he was fired. However, the court rejected arguments that Swedish Health Services didn’t get a fair shake at the arbitration hearing. The court affirmed that his sexual activities were irrelevant to the claims about the cause of the termination.
To read the court’s opinion in full, click here.

Click here to read one of my prior blogs about a wrongful termination case involving a health care facility and a former employee and whistleblower.

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,
Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical
centers, pain management clinics, nursing homes, and any other healthcare provider. We represent
facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative
hearings and in representing physicians in investigations and at Board of Medicine and Board of
Osteopathic Medicine hearings. We represent physicians accused of wrongdoing, in patient complaints and in Department of Health investigations.

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

Sources:

Lidgett, Adam. “Doc Who Solicited Prostitute Sees $17.5M Arbitral Win Upheld.” Law360. (June 25, 2019). Web.

Baker, Mike. “Judge confirms $17.5M award for fired Swedish Health neurosurgeon.” Seattle Times. (October 23, 2017). 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: Representation for health care professionals, legal representation for alternative dispute resolution (ADRS) proceedings, legal representation for arbitration for health providers, physician arbitration mediation legal counsel, physician mediation-arbitration attorney, legal representation for mediation-arbitration for health providers, complex health care litigation attorney, complex medical litigation legal counsel, complex medical business litigation attorney, physician employment legal representation, physician employment attorney, physician employment dispute lawyer, wrongful termination of health professionals legal representation, medical employment contract lawyer, medical employment contact representation, breach of physician employment contract lawyer, breach of physician contract representation, representation for healthcare whistleblowers, whistleblower defense lawyer, qui tam defense lawyer, representation for qui tam cases, The Health Law Firm reviews, reviews of The Health Law Firm

“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 © 2019 The Health Law Firm. All rights reserved.

Former UCLA Phlebotomist Awarded Nearly $1.6 Million in Harassment Suit

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

On August 7, 2019, a jury awarded almost $1.6 million to a woman who alleged she was fired for complaining about coworker’s subjecting her to racial insults and discriminatory comments at her job. Nicole Birden claimed that UCLA Medical Center, Santa Monica, failed to investigate when supervisors harassed and insulted her and several other African-American employees. Additionally, she alleged that she was fired from her job as a phlebotomist after raising concerns about the issue, according to the verdict filed in  Los Angeles Superior Court.

Alleged Hostile Work Environment.

According to Birdnne’s complaint, she began working at UCLA Medical Center Santa Monica, as a phlebotomist in 2015. Shortly after, she claims coworkers made disparaging remarks about the color of her skin and racially stereotyped her in Spanish. In June of 2016, the UC Board of Regents abruptly terminated her employment despite the fact that she had never previously received any kind of disciplinary action against her.

Following her termination she filed a complaint in 2017, alleging that the UCLA Health created a hostile work environment. Additionally, she alleges that the University of California Board of Regents violated California’s Fair Employment and Housing Act for harassment, race and age discrimination, and retaliation, according to the complaint.

To read the verdict for this case in full, click here.

Click here to read one of my prior blogs that also deals with discrimination in the workplace.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of employment discrimination and other complaints from employees and patients. We represent employers and employees in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

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

Sources:

“UC Regents to Pay $1.5 Million in Hostile Work Environment Case.” Associated Press. (August 7, 2019). Web.

Stawiki. Kevin. “Ex-UCLA Blood Tech Wins $1.6M In Racial Harassment Suit.” Law360. (August 7, 2019). 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.

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“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 © 2019 The Health Law Firm. All rights reserved.

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