Court Rules New York Doctor Can Subpoena Yelp for User Information in Defamation Suit

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

On October 7, 2021, the United States District Court for the Southern District of New York ruled that Yelp is subject to a subpoena to reveal the names of anonymous users who left negative reviews for a doctor and his medical practice. The federal court judge found that the statements in the reviews made on Yelp contained factual claims that the doctor did have a legal right to contest in court. This is a factor that is usually missing in such cases. Accordingly, a motion for expedited discovery filed by the plaintiff physician was granted by the federal judge.

A Litigious History of Lawsuits.

The embattled physician has reportedly filed other lawsuits against reviewers for defamation. The doctor himself says he’s won or reached settlements with three of the negative reviewers, forcing them to take down their “false” reviews and paying an undisclosed amount of money.

Most recently, the physician filed suit in November 2020 against nine anonymous Yelp account-holders. According to the complaint, from November 2019 to August 2020, the users posted several reviews that contained statements that harmed his practice by making untrue and libelous comments.

In the present case we are discussing filed against the Yelp reviewer, the judge found that statements such as the physician “diluted” injectables and deceived patients about pricing to be factual statements. (The physician is apparently one who performs cosmetic procedures on patients like using botox and fillers.) Therefore, if they were false statements, as the physician alleged, this establishes a prima facie claim for defamation that courts have the authority to hear. According to the court’s order: “Because Plaintiff has alleged a prima facie case . . . and they cannot identify John Doe[s] without a court-ordered subpoena, the Court agrees that there is good cause to allow for early discovery.”  Click here to view the court’s opinion on our website.

I see this as a positive occurrence. Too often reviewers on Yelp, Google, Glass Door, and other such websites post egregious comments amounting to character assassination and libel, because they believe they can remain anonymous. And the owners of the websites fight tooth and toenail to avoid any liability and to avoid any co-operation when justice is sought by those harmed by their actions. We have had a number of cases we have handled where a “reviewer” uses a phony name and creates a phony user account just for the purpose of making a libelous, damaging review. Then, if caught, they just create a new phony account and re-post the same thing again. If the major carriers and websites like Yelp, Google, Bing, AOL, and Glass Door, want to remain free of liability, then they should co-operate when a person has to hire a lawyer and pursue legal action in order to obtain justice.

Is This Abusing the Legal System in An Effort to Stifle Free Speech?

Yelp reportedly warns users of the physician’s previous attempts to sue over negative reviews in a “Consumer Alert” pop-up notice on the doctor’s review page. Additionally, it reminds users, “reviewers who share their experiences have a First Amendment right to express their opinions on Yelp.”

Unlike a newspaper or television outlet, Yelp, Google, Glass Door, and other Internet carriers and websites enjoy immunity from liability for what they allow to be posted because of a federal law that protects them. Why are they given such a big advantage over more traditional media outlets? Why should they be?

In a separate lawsuit, a judge denied the effort by the same doctor to reveal the anonymous reviewer who wrote: “Cheap product and he’s absolutely not experienced nor does he care!!!!!” Yelp argued that the review is not defamatory as there is no statement of fact that can be proven true or false. The court agreed and found that the review used a “loose, figurative tone,” suggesting that the author expressed opinions rather than facts based on a negative experience.

Therefore, according to the court, the plaintiff was not able to make “a sufficient showing of prima facie defamation.” Click here to read the judge’s order in full in that case.

I disagree with the court’s ruling, however. Whether or not the physician has any experience is certainly a fact. It can easily be proven or disproven. It seems that if a doctor hung up a sign that said “Absolutely no Experience,” this would be perceived by most reasonable people to be a negative thing. I doubt that many people would be attracted to that doctor or his practice.

Key Takeaway From the Case.

The key takeaway from this case is that contrary to what Yelp’s pop-up notice implies, Yelp’s users have “implicitly agreed” to the release of their personal data if ordered by a court.

To learn more about fighting negative reviews on websites like Yelp as a healthcare professional, click here to read my prior blog.

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:

Capriel, Jonathan. “Doc Can Subpoena Yelp User Info In Botox Defamation Suit.” Law360. (October 7, 2021). Web.

Marza, Mike. “Manhattan doctor sues over Yelp reviews he says are false.” ABC 7NY. (November 19, 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., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“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 © 2021 The Health Law Firm. All rights reserved.

 

 

Don’t Get Labeled as a “Problem Resident” for Disputes With Your Medical Education Program: Prepare to Identify and Address Problems

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

A resident physician has a tough life while working to become specialized in a medical specialty, especially in the more complex ones. Try to make it less complicated instead of more complicated.

Residents are In Two Different Positions: An Academic Position and an Employee Position.

Residents actually serve in two different positions. One position is as a learner in an academic situation, similar to a student, pursuing post-graduate training and education in an accredited graduate medical education (GME) program. The second position is as a full-time employee, paid to take care of patients in hospitals and other institutions, with a workweek often approaching or exceeding 80 hours a week. Residency training programs may range from three years to six years in length, depending on the medical specialty.

Because of the difficulty of balancing full-time work and full-time academic learning, often while dealing with family, health, and other outside problems, residents often run into difficulties with their GME programs. This may be due to personality conflicts with a program director or attending physician, cultural or religious differences, learning disabilities or other health or physical problems, outside family obligations, a bad fit with the particular program, differences in medical school training, or many other reasons.

The potential resident should attempt to identify what these might be before starting a program and seek to avoid these at any cost. This may be easier said than done, but you must identify the problem before you can fix it.

It Is Important to Know Your Rights and Take Appropriate Actions.

Understanding your due process rights and other legal rights, as well as your program’s grievance and complaint procedures, is crucial in handling serious problems after you are in a program. However, you should always seek to work out your problems informally, seeking advice from and using the resources made available for residents. These resources may include Employee Assistance Programs (EAPs), psychological and mental health counseling, the availability of mentors and tutors, the institution’s office for equity, inclusion, and diversity (which may go under different names at different institutions). Request extra tutoring and specialty courses that may be available to help you cope. Seek to eliminate areas of contention or disagreement and to increase areas of commonality and agreement. Seek at all costs to get along with others and work up to expectations.

However, if all efforts fail, then you do have abundant legal rights to protect yourself no matter what program you are in. The Accreditation Commission for Graduate Medical Education (ACGME) requires that all accredited GME programs have written policies and procedures in place that provide various rights to residents. These include, for example, the right to file grievances (complaints) when the resident is wronged and these must be formally investigated by the institutions. You will have what the ACGME calls “Due Process” rights (e.g., the right to legal representation, the right to adequate notice, the right to have a fair hearing, etc.) in connection with any type of adverse action taken against you. You will also have the right to appeal adverse decisions, the right to be free of discrimination and harassment, and other valuable rights all ACGME accredited programs must-have.

Obtain and Review All Program Manuals and Handbooks.

The resident should always obtain and review the documents that govern their programs. These are often only mentioned or reviewed in passing during orientation. You should obtain copies of these, review them and save them on your computer. You may not be able to freely access these at the time you actually need them.

Such documents may “GME Handbook,” “Residency Program Manual,” “House Staff Manual,” “Resident Policies and Procedures,” or variations on these names. Your actual resident contract or house staff contract may also have certain rights spelled out in it.

But, as an employee of the hospital or institution, you also have all of the same rights as an employee of any large organization. These may be spelled out in an Employee Handbook. But they will definitely be spelled out in your state’s employment laws. The right to work free of discrimination based on race, national origin, religion, gender, and disability, will be among these.

Take Action to Protect Your Rights and Your Career.

Seek the advice of experienced health care legal counsel at the earliest possible time, even if only to review your options and help decide on a course of action. If you receive a written counseling, remediation, performance improvement plan (PIP) corrective action plan (CAP), suspension, or probation, seek legal advice from an attorney experience with graduate medical education programs. At the very least, consult on how to respond and what to do next to be prepared.

These problems and issues are ones for a board-certified healthcare lawyer familiar with such programs, not an employment lawyer, contract lawyer, trial lawyer, or criminal defense lawyer. Know the difference.

Click here to read about the qualifications of a board-certified healthcare lawyer.

For more information, visit our YouTube page and watch our latest video on residency program disputes.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents and Fellows.

The Health Law Firm routinely represents medical students, residents and fellows who run into difficulties and have disputes with their medical schools or programs. We also represent other health providers in investigations, regulatory matters, licensing issues, litigation, inspections, and audits involving the DEA, 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 Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Our attorneys can represent you anywhere in the U.S. and anywhere in Florida.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with 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 Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“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 © 2022 The Health Law Firm. All rights reserved.

2022-02-15T14:48:25-05:00February 15th, 2022|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

CMS Using Medicare Termination to Squash Doctors Involved in Overprescribing Opioids

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

Recently it has come to our attention that there may be a nationwide effort by the Centers for Medicare and Medicaid Services (CMS) Medicare Administrative Contractors (MACs) to squelch physicians who prescribe opioids and other narcotic medications. We have seen letters sent out by CMS MACs to physicians notifying them that their Medicare program billing privileges have been terminated because CMS has identified them as a provider who is overprescribing.


Nationwide Effort to Run “Pill Mills” Out of Business.

We are well aware of efforts by the various law enforcement authorities at the state and federal level to prosecute and put out of business physicians identified as “pill mills” and the pharmacies that fill their prescriptions.  These include surprise audits and inspections, followed by administrative actions or criminal prosecutions, by the Drug Enforcement Administration (DEA), the state Attorney General’s Office, the Department of Health, statewide task forces, and local sheriff’s offices and police departments.

However, this new heavy-handed tactic hits physicians in the pocketbook. It takes advantage of an arcanely-complex system of administrative appeals that is heavily weighted in favor of the government.

If You Receive a Letter from CMS Regarding Termination of Your Medicare Billing Privileges, Act Immediately.

Do not hesitate or wait if you receive a letter notifying you that CMS is terminating your billing privileges. You must get an experienced health care attorney to represent you right away and appeal the decision through a “request for reconsideration.”  You must also ask that the termination not go into effect while the appeal is pending and provide reasons why it should not.  Often you only have a few days to do this.

In Truth, There May Be No Oversprescribing.

In one recent case, we represented a physician who received such a letter stating she was terminated from Medicare. She was not a pain management physician, and she had over 2,000 patients. She only prescribed a handful (literally, less than ten) of these patients opioids, but the medical necessity was present and well-documented. However, because Medicare was aware of the prescriptions, it terminated her because it was paying for them.

Consequences of a Medicare Privileges Termination.

There are many, many seriously adverse consequences of a termination of Medicare privileges. Often we refer to this as a “death sentence.” It could be the death of your medical practice and possibly your medical career.

Consequences include:

1.    A waiting period of ten (10) years before you can even reapply.

2.    Placement on the OIG’s List of Excluded Individuals and Entities (LEIE).

3.    Having to notify hospitals and other health facilities where you are on the staff so that your medical staff privileges can be terminated.

4.    Being terminated from your state’s Medicaid Program.

5.    Being placed on the exclusion list for all federal contracts and contractors.

6.    Being terminated from the provider panels of all health insurers.

7.    Being excluded from any job or any position, including contractor or subcontractor for any organization that receives and government funding.

8.    Possible loss of medical license or non-renewal of medical license because of #1, #2 and #4 above (in most states).

 

Act Fast; Don’t Delay!

Act fast if you receive such a letter. Do not delay.  Retain the services of a health lawyer experienced in Medicare appeals and federal administrative hearings.

Don’t Wait Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The lawyers of The Health Law Firm 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. Attorneys of The Health Law Firm represent health providers in actions initiated by the Medicaid Fraud Control Units (MFCUs), in False Claims Act cases, in actions initiated by the state to exclude or terminate from the Medicaid Program or by the HHS OIG to exclude from the Medicare Program.

Call now at (407) 331-6620 or Toll-Free (888) 331-6620 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 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.

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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 © 2022 The Health Law Firm. All rights reserved.

Humana Health Insurance Company To Pay $11.2 Million Settlement to Nurses

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

On September 27, 2021, Humana agreed to pay $11.2 million to end claims that the health insurance company denied a group of nurses overtime pay by misclassifying them as exempt employees. A Wisconsin federal judge approved the deal with Humana, and a group of more than 200 nurses reached, securing a $36,000 average payment for each nurse involved in the suit.

A Violation of the Fair Labor Standards Act (FLSA).

This dispute stems from a class-action lawsuit filed in 2017 alleging that Humana misclassified its clinical nurse advisers as exempt employees and denied them overtime compensation, violating the Fair Labor Standards Act.  Many professionals and supervisors or managerial employees are considered to be exempt from overtime laws.

In the suit, the company faced allegations from nurses who claimed they were never paid for overtime even though they were required to work more than 40 hours per week to meet Humana’s production goals and expectations.

The Settlement.

The settlement agreement will allocate almost $3 million to cover attorney fees and costs. Additionally, the 221 nurses that are part of the settling class will get nearly $8 million based on the number of full-time weeks the nurses worked. According to the motion, the average payment per nurse for unpaid overtime and liquidated damages will be over $36,000.

The case is O’Leary v. Humana Insurance Co., et al., case number 17-cv-1774, in the U.S. District Court for the Eastern District of Wisconsin. Click here to view the court’s brief in full.

To read about another case dealing with alleged pay discrimination in the healthcare field, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced in Representing Nurses and Other Healthcare Professionals.

The Health Law Firm’s attorneys routinely provide legal representation to nurses, pharmacists, pharmacy technicians, dentists, dental assistants, physicians, physician assistants, mental health counselors, and other health providers. We also provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Spezzemonte, Irene. “Humana To Pay $11.2M To End Nurses’ Misclassification Suit.” Law360. (September 27, 2021). Web.

Webster, Katherine. “Court OKs $11.2M Overtime Settlement Between Humana, Nurses.” Top Class Actions. (September 30, 2021). 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.

 

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 © 2021 The Health Law

University of Colorado Sued For Denying COVID-19 Vaccine Religious Exemptions

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

On September 29, 2021, a pediatrician and medical student sued the University of Colorado Anschutz Medical Campus (CU) for denying COVID vaccine religious exemptions. The U.S. District Court lawsuit argued that school administrators judge the validity of personal religious beliefs in violation of the First Amendment.

Religious Exception For COVID Vaccine.

Both plaintiffs are challenging the denial of their requests for religious exemptions from the school’s COVID vaccination mandate. The lawsuit alleges that the university arbitrarily grants religious exemptions to its vaccine requirement for all staff and students. It also claims that CU is approving requests that are based on organized religious beliefs that oppose vaccinations while subjecting requests based on personal religious beliefs to “intrusive religious inquisition to test the veracity of students’ and employees’ asserted religious beliefs.”

Details of the Denials.

Neither plaintiff is named in the lawsuit ostensibly to protect them from retaliation. Instead, the pediatrician is referred to as “Dr. Jane Doe,” and the first-year medical student as “John Doe.”

According to the complaint, Dr. Jane Doe requested a religious exemption based on her Catholic beliefs and opposition to “abortion-derived cell lines” used in the three available U.S. vaccines. However, she did not oppose other vaccines, such as the flu shot.

Because of this, CU denied her request, stating that campus policy “only recognizes religious exemptions based on a religious belief whose teachings are opposed to all immunizations,” according to the complaint. Jane Doe argues that her pending termination will harm her reputation and stain her record as a licensed medical professional.

According to the complaint, the second plaintiff, John Doe, a first-year medical student, requested a religious exemption citing his Buddhist beliefs and avoidance of “products developed through the killing or harming of animals (including human beings).”

CU officials also denied the exception request, stating that John Doe’s objections to the vaccine “are all of a personal nature and not part of a comprehensive system of religious beliefs.”

The lawsuit says John Doe’s pending termination from CU would bar him from transferring to a different medical school under guidelines issued by the Association of American Medical Colleges and that he would have to reapply to attend a different U.S. medical program.

In response to the lawsuit, a spokesperson for the university said their mandatory vaccine policy “offers the best way to protect” the more than two million patients that the university faculty serve annually.

Both plaintiffs seek approval of their requests for religious exemptions and money for court costs and personal damages. This lawsuit is just one example of the fight over a growing number of COVID vaccine mandates nationwide. As a result, businesses need to be mindful and provide reasonable accommodations to employees with disabilities or religious beliefs that prevent them from receiving the COVID vaccine.

To read about another recent case regarding a hospital’s COVID vaccine mandate, click here to read my prior blog.

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. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, medical groups, institutions, and individual health professionals 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 and DORA investigations. We represent medical students and resident physicians in disputes with their medical education programs. We do NOT represent plaintiffs seeking to avoid vaccinations or in COVID-19 injury suits, however.

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

Sources:

Nieberg, Patty. “University of Colorado faces COVID religious exemption suit.” AP News. (September 29, 2021). Web.

“Pediatrician, medical student sue University of Colorado over denial of COVID vaccine religious exemption.” The Colorado Sun. (September 30, 2021). 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 Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

“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 © 2021 The Health Law Firm. All rights reserved.

 

Good News and Bad News for ECFMG & USMLE Applicants: Recent Changes for the USMLE Step Exams

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

These are some recently announced changes that could significantly impact anyone seeking to take the USMLE Step exams. This could be construed as good news by many and bad news by many others. Regardless, here it is.

Step 1 Exam Changing to Pass/Fail Grade and Score Reporting.

The USMLE announced recently that it would change the scoring and reporting for Step 1 exam scores. Step 1 score reporting will transition to pass/fail only for administrations on or after January 26, 2022. All of the worry about passing with a low score and how that might affect residency choices will be eliminated by this change.

Number of Attempts for Step 1 or Step 2 Exam Limited to Four (4) Lifetime Attempts.

Remember when you had no limit on the number of times you could take a USMLE Step exam? Remember when it was reduced to a maximum of six (6) attempts, not that long ago? Guess what? Not anymore!

Effective July 1, 2021, the number of attempts you can have to pass any USMLE Step exam will change. The change latest change reduces the total number of allowable attempts from six (6) attempts to four (4) attempts for any single Step exam, including any incomplete attempts. This is in effect for all applications submitted on or after July 1, 2021. So now, examinees who have already attempted any USMLE Step exam four (4) or more times and have not passed, will no longer be eligible to apply for the USMLE exams.

Is it possible to obtain an exemption? Depending on your circumstances, we can petition for one, but that does not mean it will be granted.

Step 2-CS Exam Completely Eliminated!!!!

Remember the Test of English as a Foreign Language (TOEFL), also known as “der Teufel” (1), that used to be required for Foreign Medical Graduates (now known as “International Medical Graduates” or “IMGs”)? No? Well, I don’t either.

Remember when the Step 2-CS was easily considered the most difficult exam for a foreign medical graduate to pass. Well, I do remember this!

The Step 2-CS (for “clinical skills”) exam was supposed to address any foreign language problems in practicing in the United States. This became, in my opinion, one of the biggest obstacles to for IMGs becoming licensed in the U.S. It was originally discontinued for approximately a year and a half because of problems caused by the COVID-19 epidemic.

Guess what? It doesn’t exist anymore. Accordingly, the Federation of State Medical Boards (FSMB) and the National Board of Medical Examiners (NBME), co-sponsors of the United States Medical Licensing Examination (USMLE) by the USMLE Secretariat, announced on January 26, 2021, that it was discontinuing the Step 2-CS exam.

I guess the powers that be learned when they eliminated the Step 2-CS during the COVID-19 pandemic in 2020, that it was not so necessary after all. Now it is gone.

“Will it ever return, no it will never return; its fate is still unknown.”(1) There is no expectation that it will ever come back. What do you do now with all of those low score “fails” and lows test score “passes” you previously received on the Step 1 exam and the Step 2-CS? The answer is lost in chaos. We will just have to wait and see.

Major Chinese Medical Schools Disqualified in 2019.

See my next blog on what happened to eight (8) major Chinese medical schools so that their graduates cannot take the Step exams or become licensed in the U.S. anymore. Click here to read about the Chines medical schools.

Endnotes:

(1) German for “the Devil”

(2) Paraphrase of verse from “MTA” [standing for the Boston Metropolitan Transit Authority or subway train] written by Jacqueline Steiner and Bess Lomax Hawes, recorded and made famous by The Kingston Trio in 1959.

(3) Answer to the final question asked at the end of every episode of the Japanese Anime series “Dorohedoro” or “Doro and Doro” (2020) (available on Netflix), about a man named “Caiman” who wakes up one morning with the head of a lizard and amnesia and searches for the reason.

Contact a Health Care Attorney Experienced in the Representation of Medical Students, Interns, Residents and Applicants, Fellows and Those Involved in Graduate Medical Education, and those being challenged by the National Board fo Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG)

The Health Law Firm and its attorneys represent interns, residents, fellows, and medical school students in disputes with their medical schools, supervisors, residency programs, and in dismissal hearings. We have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation, and any other matters. We routinely help those who have disputes with the National Board fo Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG), including on hearings and appeals concerning “Irregular Behavior,” “unprofessionalism,” and “Irregular Conduct.”

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

Sources:

“USMLE policy updates following Step 2 CS discontinuation.” United States Medical Licensing Examination Announcements. (July 21, 2021). Web.

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

 

“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

Eight Major Chinese Medical Schools No Longer Listed in World Directory Relied on by ECFMG and USMLE

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

In April 2014, the new World Directory of Medical Schools (“World Directory”) was published. It took over as the definitive list of medical schools in the world (yes, the whole world). There are 180 Chinese medical schools listed on the World Directory of Medical Schools. Medical graduates from these schools are routinely eligible to take the United States Medical Licensing Examination (USMLE) Step exams, required for licensing in the United States, after applying and obtaining permission through the Educational Commission for Foreign Medical Graduates (ECFMG).

However, in 2019, eight (8) previously recognized Chinese medical schools were dropped from the World Directory or “delisted.” According to the Korean Medical Association (KMA)’s Research Institute for Medical Policy, the World Federation for Medical Education (WFME) (the organization that maintains and publishes the directory) deleted the eight Chinese medical schools from the World Directory. The eight (8) Chinese medical schools were delisted from the World Directory of Medical Schools (WDMS) a year after Oriental medical schools in Korea also failed to be listed on the directory any longer.

The eight “delisted” medical schools are Beijing University of Chinese Medicine, Guiyang College of Traditional Chinese Medicine, Heilongjiang University of Chinese Medicine, Liaoning University of Traditional Chinese Medicine, Shanghai University of Traditional Chinese Medicine, Shanxi College of Traditional Chinese Medicine, Tianjin University of Traditional Chinese Medicine, and Yunnan University of Traditional Chinese Medicine.

According to the Korean Medical Association’s reports and other publications, the WFME’s decisions clearly show that the world’s medical community does not recognize both Korea’s Oriental medicine and traditional Chinese [Oriental] medicine as modern, scientifically-based medicine.

What Does This Mean?

This means that if you graduated from one of the delisted eight (8) Chinese medical schools, you will no longer be allowed to apply for and receive services from the Educational Commission for Foreign Medical Graduates (ECFMG). In addition, it means you will not be able to apply for and take the Step exams administered by the United States Medical Licensing Examination (USMLE) Secretariat, and you will not be able to become licensed in the United States.

Hey, Don’t Shoot Me! I’m Just the Messenger!

Inquiries and other correspondence regarding the World Directory may be sent to info@wdoms.org or to:

World Federation for Medical Education
13A Chemin du Levant
01210 Ferney-Voltaire
France
www.wfme.org

What Might Possibly Be Done?

Some ideas that might (or might not) work include:

1. Graduates of the delisted schools might apply for recognized medical schools and seek to graduate from one of these. Whether or not you will be able to get any credit for your prior medical school is a different question.

2. Bring pressure on your delisted medical school to add courses and curricula to meet the same requirements as a “Western” medical school or “scientific medical school.”

3. Sorry, that’s about all I could think of. Petitioning for an exception or suing the ECFMG or USMLE is a “non-starter” by my way of thinking.

To read about a similar case involving a Caribbean medical school, click here.

Contact a Health Care Attorney Experienced in the Representation of Medical Students, Interns, Residents and Applicants, Fellows and Those Involved in Graduate Medical Education, and those being challenged by the National Board fo Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG)

The Health Law Firm and its attorneys represent interns, residents, fellows, and medical school students in disputes with their medical schools, supervisors, residency programs, and in dismissal hearings. We have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation, and any other matters. We routinely help those who have disputes with the National Board fo Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG), including on hearings and appeals concerning “Irregular Behavior,” “unprofessionalism,” and “Irregular Conduct.”

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

Sources:

Yuqiao, Ji. “TCM [tradional Chinese Medicine] grads struggle after removal from world medical list.” Global Times. (Nov. 18, 2019) (https://www.globaltimes.cn/content/1170466.shtml).

Gwang-seok, I. “8 Chinese medical schools delisted from world directory of medical schools.” Korea Biomedical Review. (November 7, 2019). (https://www.koreabiomed.com/news/articleView.html?idxno=6769).

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 or Toll-Free: (888)-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 © 2021 The Health Law Firm. All rights reserved.

 

 

 

What is the Cost For Legal Defense in a Hospital Medical Staff Peer Review Fair Hearing?

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

If you are a physician, nurse practitioner, oral surgeon, dentist, or other health professional with clinical privileges in a hospital, you may face a situation where you are required to defend yourself at a “fair hearing.”  A “fair hearing” is held by the hospital’s medical staff pursuant to the Medical Staff Bylaws or Rules and Regulations of the Medical Staff.

“Fair Hearing”–A Term of Art.

The hearing is called a “fair hearing,” which is a term of art.  Usually, those defending themselves at such hearings don’t find them to be fair at all. However, according to the federal Health Care Quality Improvement Act (HCQIA), such proceedings are required to provide the affected healthcare practitioner with certain “due process,” such as the right to be advised of the specific charges made against them, the right to legal representation, the right to produce witnesses and evidence of their own and other rights.

Be Sure You Have Professional Liability Insurance That Includes Coverage for Clinical Privileges Actions.

If you face such a hearing, you will find it difficult to find an experienced lawyer to represent you and, when you do, it will be a costly endeavor.  This is one of the primary reasons to purchase good professional liability insurance, including legal defense of such peer review actions. Unfortunately, most insurance companies that provide such coverage have limits far too low to pay all legal defense expenses you will probably incur.

Standard Insurance Coverage Amounts May Not Be Sufficient to Protect You Properly.

However, the basic amount provided for such coverage in most insurance policies is not sufficient to cover the actual expenses of the proceeding.  Standard coverage amounts are usually in amounts of $25,000, $35,000, or $50,000;  again, these are not sufficient to pay for even the most basic fair hearing.  Some insurers have much higher limits;  it is important to find out precisely what you have to increase the coverage or buy additional coverage.

There are often additional “riders” to insurance policies that you can purchase, “additional coverages,” or even a completely separate policy that will provide such legal defense coverage for you.  It is usually not that expensive and is worth inquiring about.  This type of coverage often goes hand-in-hand with professional license defense coverage as one can cause the other to occur. For example, a hospital peer review action can result in a report to your state licensing board. A licensing complaint or action may cause hospital peer review action to be initiated against you.

You should think of a “fair hearing” as similar to a medical malpractice trial and plan accordingly.


Costs and Expenses of a “Fair Hearing”

One of the most significant expenses you will incur in preparing for a “fair hearing” is expert witness fees. In almost every case we have ever had, obtaining one or more expert witnesses to testify at the hearing has been necessary.  Obtaining experts in medical sub-specialties will cost more, of course, than those in specialties such as family medicine and internal medicine.  It is often difficult to find an expert witness who will not only support your position in the case but will also show up at the hospital to testify at the “fair hearing.”

Additionally, the mere preparation for the hearing (including document reviews and working with the expert witnesses) and representation at the hearing is a time-intensive endeavor.  It has been our experience that even the most routine “fair hearing” costs approximately $100,000. For example, in one case we had involving several different areas of spinal surgery, requiring five (5) expert witnesses, cost in excess of $250,000 (note:  all charges against the doctor were dismissed at the hearing).

Conclusion.

Peer review “fair hearings” in hospitals are costly to defend and require an experienced attorney and the financial resolve to see the case through to its conclusion.  Often insurance does not provide sufficient coverage for such hearings. Therefore, physicians, nurse practitioners, oral surgeons, psychologists, and others having hospital clinical privileges should purchase additional coverage for such events and hire experienced legal counsel to represent them at the earliest stage of the proceedings.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers in Peer Review and “Fair Hearing” Matters.

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. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. 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.

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

“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

How Medical Information Bureau (MIB) Reports Can Affect Your Insurance Policy Rates

Attorney Amanda ForbesBy Amanda I. Forbes, J.D.

When you apply for insurance, an insurance company will look at various factors regarding your history to determine how much your insurance policy will cost. Most insurers obtain a report from the Medical Information Bureau (“MIB”) and use this in determining the risk you pose and, hence, your policy premium.

The MIB checks past records to identify any errors, misrepresentations, or omissions made on an insurance application. An MIB report is similar to a credit report except it is specifically tailored for the insurance process. Click here to learn more.

What Does the MIB do?

Since 1902, the MIB has worked as a not-for-profit organization in the United States and Canada. Its members (e.g., life insurance companies, health insurance companies, disability insurers, etc.) use the MIB to help them determine a person’s “risk and eligibility during the underwriting of life, health, disability income, critical illness, and long-term care insurance policies.” Learn more about the organization here.

Insurance applications, whether for health, life, disability, critical illness, or long-term care, will almost always have several health questions that help the insurance company determine an appropriate risk classification for that individual. The higher the risk, the higher the premium, usually. Traditionally, some applicants in very high-risk categories (transplant patients, those with serious long-term chronic medical conditions) or in high-risk professions (e.g., parachuting instructors, trapeze artists, explosives experts) may not be able to obtain insurance at all.

Sometimes an applicant for an insurance policy may try to obtain lower premiums by knowingly omitting key information on their applications. Because of this, insurance companies started to rely on MIB reports to identify and prevent insurance fraud. The MIB provides information that can be used to identify false or incomplete applications.

It is estimated that the MIB saves its member companies over $1 billion annually (Note: I think this estimate probably comes from the MIB). It can do this because the information it provides to its members allows them to evaluate and assess risk more accurately. MIB’s members share information with MIB in a coded format to protect individuals’ privacy.

MIB Pre-Notices.

When a member company wants to search MIB’s database or report information to the MIB, it must first give the individual MIB a “pre-notice.” However, this is often buried in the fine print of the insurance application. The MIB “pre-notice” advises the individual that a report of their medical condition may be provided to MIB.

When the individual later applies for insurance with a different company that is a member of MIB, then MIB may provide that company with an MIB report.

After the individual receives MIB “pre-notice,” they are requested to sign an authorization. The authorization advises the individual that MIB is an information source, as well as others that may have records about the individual (e.g., primary care physician). The signed authorization permits the member company to receive and share information with MIB. Learn more about MIB “pre-notice” here.

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. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. 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 our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

About the Author: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. 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 or toll-free: (888) 331-6620.

“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 © 2021 The Health Law Firm. All rights reserved.

 

Mental Health Counselors and Psychotherapists: Follow These Simple Rules for Keeping Your License and Avoiding Complaints

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

I represent many mental health counselors, social workers, psychologists, and professional counselors, defending them on complaints being investigated against their professional licenses. Many complaints and investigations arise because the therapist has strayed over the line and crossed the therapist-client boundary. In reviewing these cases, I have drawn up a list of a few simple “bright line” rules that can help save you many hours of stress and mental anguish as well as thousands of dollars in attorney’s fees and costs defending yourself

These “rules” may seem to be common sense, but there they are, anyway:

1. DO NOT ever meet the client at an outside social activity or attend a social event with the client. This includes “just dinner” or “just-drinks.”

2. DO NOT text the client. Texting is not secure and leads to casual and unprofessional thinking and conversation with the client. Many health care institutions prohibit their physicians and employees from texting with clients because of the HIPAA Security and Privacy Rules. You can use that as an excuse if you need one.

3. DO take a screenshot and print out the text when you violate the above rule. Place it in the client’s health record because you will probably be seeing it again, attached to a complaint.

4. DO send an e-mail or, better yet, a professional letter to the client, instead of texting the client. Print out a copy and place it in the client’s health record, because you will probably see it again.

5. DO NOT EVER make any suggestive or sexual remarks to the client in any communications, oral or written or text, or e-mail. In fact, DON’T even think about it. This includes off-color jokes and comments.

6. DO immediately terminate the relationship with the client, transferring care to a different therapist, if the client suggests anything of a sexual nature involving you.

7. DO NOT talk about other clients with the client.

8. DO NOT talk about your own personal life with the client. Especially DO NOT let the client have your personal home address or personal e-mail address.

9. DO NOT ever have sex with a client or former client. DO NOT even think of it. If you start to think of it, see Rule 6, above. Consider clients and former clients “off-limits” no matter how much you are tempted. If you are religious, just consider this as an attempt by Satan to seduce you. If it works, you are going to be in Hell, even before you die.

10. DO know what professional boundaries are and DO NOT cross them. This includes allowing a personal relationship to grow between you and the client, and includes selling anything to the client (e.g., Girl Scout cookies, tickets to a charitable event, Amway products, candy bars for your kids’ school band, etc.), agreeing to meet the client at any outside event, accepting gifts from the client, hiring the client to work for you, accepting “voluntary” services from the client (including volunteering to work in your office). If you need a friend that bad, terminate the therapist-client relationship and see Rule 6, above.

11. DO know that if you have even a suspicion that your therapist-client relationship is getting out of bounds, then it already is out of bounds. See Rule 6, above.

12. DO call a professional therapist colleague who is more senior to you and consult her or him about the “situation” if you think there may be a “situation.”

These may sound like “no-brainers” to you, but you would be surprised at how many complaints against licensed counselors and psychologists there are as a result of violating one or more of these “rules.”

(Note: These “rules” are just guidelines meant to help you keep out of trouble; these are not meant to be enforced against anyone, nor do they create or represent any “standard of care.”)

For additional information on how our firm can assist you in matters like this, click here to read one of our prior blogs.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

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 Toll-Free: (888) 331-6620 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 Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620

“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 © 2021 The Health Law Firm. All rights reserved.

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