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.

Rapper 50 Cent Sues Florida Plastic Surgeon Over “Penile Enhancement” Ads & Social Media Photos

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

On September 16, 2022, 50 Cent, the rapper and entrepreneur, sued a plastic surgeon and her Sunny Isle Beach, Florida, medical practice in federal court. The suit alleges that the doctor used photographs she took with 50 Cent to promote her business on social media. without his consent. The suit also alleges that the ads and social media falsely implied that 50 Cent had received penile enhancement treatment from the doctor’s practice when he had not.

A 32-page complaint (lawsuit) was filed in federal court in the Southern District of Florida by 50 Cent, whose real name is Curtis J. Jackson III. It was filed against Angela Kogan, M.D., and Perfection Plastic Surgery and Medspa.

And whoever said the practice of health law wasn’t fun and interesting?

Allegations Made in the Complaint.

According to the complaint, the plaintiff is a “world-famous celebrity and entrepreneur.” In February 2020, according to the complaint, 50 Cent agreed to take a photograph with Dr. Kogan. He thought she was a fan. Once she had taken the picture, the complaint states, she allegedly used it as promotional content for Perfection Plastic Surgery, touting 50 Cent as a client and insinuating his endorsement.

50 Cent claims that since the defendant took the photo, it’s also been featured in a news article opposite an image of a faceless male allegedly undergoing a penile enhancement procedure. He argues that this made the implication of the article clear, stating that “not only were [plaintiff’s] image and name linked to a sexual enhancement treatment he never had, but Kogan also falsely implied that [plaintiff] was her client for plastic surgery.”

Between February 2020, when the photos were taken, and August of 2022, the complaint alleges, Dr. Kogan and her business posted the images on her business accounts seven times, along with multiple hashtags for users to find them. However, the posts did not include disclaimers that 50 Cent was not a client/patient, the suit says.

Causes of Action Include Invasion of Privacy, Lanham Act Violations and More.

The complaint states that 50 Cent never received plastic surgery from the defendants. The complaint concludes by asserting that the defendants “opportunistically misappropriated Jackson’s (50 Cent’s) name and image for their own promotional and commercial advantage,” in violation of the Lanham Act and the plaintiff’s right to publicity.

The six-count complaint cites right of publicity, common law invasion of privacy, two violations of the Lanham Act, conversion, and unjust enrichment. 50 Cent is seeking punitive, treble, and exemplary damages, a permanent injunction preventing the defendants from further misconduct, litigation fees, interest, disgorgement of profits, and any other relief deemed proper by the court.
Read the complaint in full here.

Stay tuned for more on this interesting Florida law suit, as it unfolds.

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

At the Health Law Firm, we provide legal services, including defense in complex medical litigation, for physicians, medical groups, and other healthcare providers. This includes plastic surgeons, cosmetic dermatologists, nurse practitioners, oral and maxillofacial surgeons, psychologists, psychiatrists, mental health counselors, and many others. This includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We also represent health facilities, individuals, groups, and institutions in contracts, sales, and mergers, and acquisitions. The lawyers of The Health Law Firm are also experienced in litigation at 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.

Sources:

Atkins, Dorothy. “50 Cent Sues Fla. Surgeon Over ‘Penile Enhancement’ Ads.” Law360. (September 20, 2022). Web.

Heebink, Kendall. “Rapper 50 Cent Sues Florida Plastic Surgeon Over False Claims.” Law Street Media. (September 19, 2022). 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 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in the practice of health law. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: PAlexander@TheHealthLawFirm.com or fax to: (407) 331-3030.

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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.

2022-10-18T23:34:13-04:00November 3rd, 2022|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

A Criminal Offense On Your Record Can Prevent You from Obtaining Your License in Florida

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

Someone arrested for a criminal offense knows that it can lead to a criminal record that may or may not be on your record for the rest of your life. However, once you pay your fine and carry out any other disciplinary action the court has ordered, you expect the consequences to be over. In many cases, the arrest and offense can even be sealed or expunged so that it is no longer on your record. However, in the case of someone who desires to apply for a license in the health care field or who is already licensed, this is not the end of the consequences you will face.

For healthcare professionals, a criminal charge can mean being disqualified from obtaining a license or losing your license to practice. Conviction of certain criminal offenses may even mean exclusion from being a Medicare provider or termination from the state Medicaid Program, which can also be grounds for revoking your license. Criminal charges against a health professional can have serious and long-lasting consequences.

How Criminal Charges Impact Your Professional License.

Licensing authorities are charged by statute with protecting the general public, not the individuals they regulate. Most state laws regulating health practitioners include criminal convictions as one of the grounds for denial or discipline of a professional license. Some state laws (for example, Florida’s) allow the state licensing authority to impose discipline upon a nolo contendere (no contest) plea or even when adjudication is withheld or deferred by the court.

State regulatory authorities can and do impose discipline based on the facts underlying a conviction, even when the conviction itself is not directly related to the practice of a profession. For example, a conviction for driving under the influence (DUI) or reckless driving may raise the question with the licensing authority of whether the practitioner could be impaired or reckless while providing patient care. The licensing authority will likely investigate these matters and the facts underlying the offense to determine if the practitioner threatens the public.

Therefore, if you have been arrested for DUI, disorderly conduct, assault, or any other misdemeanor, you can anticipate that the state, the Department of Health (DOH), or the Department of Licensing and Regulatory Affairs will start an investigation. You must retain an attorney who can immediately defend your freedom during your criminal case and protect your livelihood during licensing proceedings.

Mandatory Report of Conviction of Felony or Misdemeanor Charge.

In the event of a conviction, this may trigger a required report to the state licensing board within a certain period. Some states only require a report at the time of renewal of the license. Other states require a report within thirty days of the disposition of the offense. Still others, like Florida, may have multiple actions the provider must take in such instances.

For example, certain licensed health professionals in Florida must maintain an online provider profile. Those who must maintain a profile in Florida include medical doctors, podiatrists, nurse practitioners, and chiropractors. State law requires that for any change in the information required on the profile (a conviction, for example), the profile must be updated within fifteen (15) days. In addition, Florida law requires a written report be made to the professional licensing board of any licensed health provider within thirty (30) days of the disposition of the offense.

Suppose you have been arrested and are facing felony or misdemeanor charges. In that case, you must seek the advice and experience of an attorney who can help you and your criminal defense attorney to analyze different outcomes to help protect your license.

Health professionals who have been arrested generally want their criminal cases resolved as quickly and quietly as possible. Unfortunately, they may inadvertently accept a plea arrangement that results in later severe discipline or revocation of their professional license. All health professionals and their criminal defense attorneys should consider the consequences of the practitioner’s license before accepting a plea arrangement and should consult with an experienced health law attorney. Click here to read one of our prior blogs for more information on this. 

Remember, your health profession is probably your only means of support. You must realize that you may need additional legal help from an experienced healthcare attorney to maintain it.

The disciplinary process is often long and extremely costly. The effects of discipline on your license can follow you for the remainder of your career and is publicly available to anyone who cares to look. If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you and your criminal counsel on the effects of a potential outcome on your license.

Contact Health Law Attorneys Experienced in Handling Licensure Matter and Disciplinary Matters.

The Health Law Firm routinely represents physicians, pharmacists, dentists, nurses, mental health counselors, social workers, and other health practitioners in licensure matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while at the same time preserving the practitioner’s license.

To contact The Health Law Firm, 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 Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: PAlexander@TheHealthLawFirm.com or fax to: (407) 331-3030.

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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.

2022-10-14T15:09:32-04:00November 1st, 2022|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

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.

 

COVID-19 Burn Out Causing More Resident Physicians to Unionize, Part 2

stethoscope and gavel with the word covid-19 written before it
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

This is part two of a blog series focusing on the effects of COVID burnout in healthcare professionals. Don’t forget to read part one.


The Problem With Residents’ Working Conditions Existed Long Before the Pandemic.

It’s common for resident physicians to work long hours for relatively low pay. They have little or no ability to determine their schedule and are generally locked into positions for up to seven years. Certainly, medical residents have voiced concerns about their work lives long before the pandemic. Some describe years of grueling schedules, sometimes with 24-hour shifts, including 80-hour workweeks. “Residents were always working crazy hours, then the stress of the pandemic hit them really hard,” John August, a director at Cornell University’s School of Industrial and Labor Relations, is quoted as having said.

To learn more about issues that affect residents and fellow physicians, click here to visit the American Medical Association (AMA) Resident and Fellow Section.


Benefits & Drawbacks of Unionizing.

Medical residents looking to unionize often cite such basics as pay and working conditions as top reasons. For reference, first-year residents earned just under $60,000 on average in 2021, according to a survey done by AAMC.  At 80 hours a week, one could calculate that residents could very well be earning less than the minimum wage, according to the AAMC data.

Those unionizing typically say wages are too low, especially given residents’ workload, student loan debt, and the rising cost of living.

Additionally, some residents say that unions can have upsides for hospitals and can also help enhance patient care. Patients deserve physicians who aren’t exhausted and preoccupied with the stress of finances. “To take good care of others, we need to be able to care for ourselves. We love being residents and caring for patients. But we can’t do that well if we neglect ourselves,” said a University of Vermont Medical Center resident.

On the other hand, residents unionizing is not without its potential drawbacks. For hospitals, money is an issue. Although federal funding helps pay residents’ salaries, most training expenses come from hospitals. In many instances, because of the pandemic, those funds are now depleted, said Janis Orlowski, MD, AAMC chief health care officer.

Some worry that unionizing can undermine the connections between residents and the physicians who train them. Another primary concern for hospitals is the threat of a strike; although rare, it has been decades since the last one. Many residents also worry that unionizing could undermine patients’ and communities’ trust in them.

Happy Residents, Happy Patients.

For some healthcare workers, the COVID-19 pandemic solidified the importance of a union. Residents have been on the front lines of care but were not alwaysmedical residents giving a thumbs up with arms up in the air the first to access PPE or lifesaving vaccines. Others are simply looking for acknowledgment of the sacrifices they’ve made while caring for the country’s most vulnerable patients.

However, one thing remains clear; both sides agree that the goal is to become a good physician and get taken care of in the process.

For more information on residency programs, click here to watch one of our video blogs, and make sure to check out our YouTube page.


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

The Health Law Firm routinely represents resident physicians, fellows and students, including medical students, dental students, nursing students, pharmacy students, and other healthcare professional students, who have legal problems with their schools or programs. We also represent students, residents, and fellows in investigations, academic probation and suspensions, disciplinary hearings, clinical competence committee (CCC) hearings, and appeals of adverse actions taken against them. The Health Law Firm’s 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.

Sources:

Weiner, Stacey. “Thousands of medical residents are unionizing. Here’s what that means for doctors, hospitals, and the patients they serve.” AAMC News. (June 7, 2022). Web.

Kwon, Sarah. “Burned out by COVID and 80-hour workweeks, resident physicians unionize.” Kaiser Health News. (May 27, 2022). Web.

Murphy, Brenden. “Why more resident physicians are looking to unionize.” AMA. (June 28, 2022). Web.

Author HeadshotAbout 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 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.

16 Tips For Health Professionals to Avoid Sexual Harassment Complaints & Allegations

Author Headshot

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

Throughout my decades of representing health care professionals, I have seen cases where an economic competitor of a physician generated false sexual harassment complaints to eliminate competition. I have seen cases where an ex-employee invented false allegations of sexual harassment after that employee was caught embezzling money from the employer. There have been cases where administrative and nursing staff have conspired to create complaints against a demanding and unpopular physician in a hospital setting. Therefore, I am never surprised when a physician claims they are the subject of a fabricated sexual harassment complaint and contacts me seeking a consultation.

As a result, I have come up with a list of tips that any individual health professional should follow to avoid such complaints and allegations.

Below are helpful tips that all medical professionals should know to avoid sexual harassment complaints or allegations:

1. Avoid all office and workplace romances.

2. Do not touch others, especially those of the opposite sex.

3. Never even consider having a romantic relationship with a patient.

4. Do not tell off-color or sexually suggestive jokes.

5. Do not compliment a worker, staff, or colleague of the opposite sex on their appearance, clothes, etc. This is a good rule to follow, even if the other person is of the same sex.

6. If your remarks or conduct is perceived as inappropriate by a staff member, or they say this, apologize immediately and assure them this was not intended and will never happen again. Then document the incident with a note to your own file or a memorandum to yourself. Consider reporting the incident your group’s administrator or office manager.

7. Do not socialize inappropriately with anyone who may be considered your subordinate or over whom you have perceived authority, especially where alcohol is involved. The exception is for sanctioned, official group functions.

8. Do not socialize with patients.

9. Do not use obscene language in the workplace, in front of other staff, employees, or patients.

10. If anyone alleges you acted inappropriately, report it to the group’s administrator immediately.

11. If a patient makes a sexually suggestive remark or asks you out, arrange to have that patient transferred to the care of a different health professional, immediately.

12. Know that plaintiff’s attorneys in sexual harassment and discrimination cases advise their clients to keep detailed notes and diaries concerning their contacts with a perceived abuser or harasser.

13. If a complaint is filed against you, report it immediately (to both the group administrator and your insurer) and retain an attorney to represent you regarding it. It could result in a lawsuit, a Board of Medicine complaint, termination of employment, peer review proceedings to revoke your clinical privileges or other actions.

14. Be familiar with your medical group’s and the hospital’s policies and procedures on sexual harassment, disruptive behavior, and reporting incidents. Follow it.

15. Act professionally when in contact with patients, staff, or colleagues.

16. Know that investigators and plaintiff’s attorneys in sexual harassment and discrimination cases often advise the alleged victim to contact the perpetrator by telephone and attempt to obtain incriminating statements. If a tape recording of the conversation is made by law enforcement officials, it will probably be admissible in proceedings against the alleged perpetrator. Never discuss any inappropriate activity over the telephone.

To learn more about the severe repercussions of such allegations, read my blog, where I discuss sex discrimination complaints against the University Of Southern California Medical School.

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, dentists, nurses, resident physicians, mental health counselors, social workers, pharmacists, and health facilities. Our legal representation also includes medical students, medical school professors, and clinical staff. We represent health facilities, individuals, groups, and institutions in investigations, 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 and other healthg professionals 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: 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 © 2022 The Health Law Firm. All rights reserved.

 

 

COVID-19 Burn Out Causing More Resident Physicians to Unionize, Part 1

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

This is part one in a blog series focusing on the effects of COVID burnout in healthcare professionals. Be sure to check back for part two.

As you know, residents are new physicians who have recently finished medical school and are spending three to seven years obtaining additional training in a medical specialty. Almost all hospitals practice independently; after all, they are doctors already. And in nearly all hospitals where resident physicians practice, they represent the front line of medical care. On duty all the time, on-call all the time, they are usually the first medical professional to see a new patient who can make a diagnosis and order tests or medications. In addition, resident physicians are generally the first to examine, diagnose, and treat a patient.

In most hospitals, in the past, residents were treated almost as indentured servants, required to work long hours without sleep, pull back-to-back shifts, and remain on call for extensive periods. This was considered a right of passage for resident physicians; a “baptism of fire.” If they couldn’t hack it, they did not deserve to be a physician in the specialty.

More than 80 Hours per Week-a Routine Occurrence.

However, recently (let’s say in the last decade or so), it has been recognized that overworked health professionals cannot provide optimum, safe patient care. This led such organizations as the Accreditation Council for Graduate Medical Education (ACGME), which accredits residency programs in the U.S., to require that such programs and hospitals that residents work in must limit the resident physician’s work hours to no more than 80 (yes, 80) hours per week. It got so bad that at least one state, New York, passed a law stating that it was illegal for resident physicians to work more than 80 hours per week.

However, even before the COVID-19 pandemic, there were hospitals and residency programs that would require their residents to work more than 80 hours a week and to turn in false time sheets showing they had worked fewer. We have had many reports that such programs even meet with their residents before an ACGME inspection (or survey) and tell them they must lie to the investigators (or surveyors) and falsely state they did not work more than 80 hours.

COVID-19 Comes on the Scene.

However, in a real crisis like the COVID-19 pandemic, where patients are coming into hospitals dying right and left, it must be acknowledged that resident physicians and other hospital staff will be working above and beyond the maximum, no matter what. The long hours, the lack of relief, the stress of losing patients, and the stress of exposure to a potentially deadly disease have taken their toll on many resident physicians. Those who have contracted the virus and had to rush their recovery and recuperation to get back to work have, perhaps, suffered the most.

Residents Banding Together to Unionize.

Many resident physicians are now banding together to demand higher wages, better benefits, and working conditions due mainly to the “burnout” they experienced during the COVID-19 pandemic. They join nurses, medical assistants, and other health care workers who are unionizing and threatening to strike. In addition, staffing shortages, the rising cost of living, and the lack of personal protective equipment (PPE) and COVID vaccines have pushed them to their limits.

In some places, New York being a familiar example, resident physicians already had unions representing them in many areas. Now, this is expanding.

Check back soon to read part two of this blog series.

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

The Health Law Firm routinely represents resident physicians, fellows, and students, including medical students, dental students, nursing students, pharmacy students, and other healthcare professional students, who have legal problems with their schools or programs. We also represent students, residents, and fellows in investigations, academic probation and suspensions, disciplinary hearings, clinical competence committee (CCC) hearings, and appeals of adverse actions taken against them. The Health Law Firm’s attorneys include those board-certified by The Florida Bar in Health Law and 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.

Sources:

Weiner, Stacey. “Thousands of medical residents are unionizing. Here’s what that means for doctors, hospitals, and the patients they serve.” AAMC News. (June 7, 2022). Web.

Kwon, Sarah. “Burned out by COVID and 80-hour workweeks, resident physicians unionize.” Kaiser Health News. (May 27, 2022). Web.

Murphy, Brenden. “Why more resident physicians are looking to unionize.” AMA. (June 28, 2022). Web.

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 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.

Helpful Tips Healthcare Professionals Should Be Following for Professional Correspondence

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

I review many letters, e-mails, memoranda, and other types of correspondence prepared by my physician and nurse clients during my legal representation. These come to me often because of a dispute with a hospital, their peers, an insurance company, a lawsuit filed by a patient, a complaint being investigated by the licensing agency, an investigation of an incident, or another serious matter.

In many cases, way too many cases, such correspondence is unprofessional and defeats the purpose of the reason you are sending the correspondence. Sometimes the “letter” is so bad, that it will be disregarded by the reader to whom it was directed. I have seen this from doctors, nurses, dentists, psychologists, owners of health care businesses, and many, many other highly educated professionals who really should know better.

When I receive a “letter” that has no return address on it, no date on it is not addressed to a person or organization, has typographical errors and misspellings, does not have a paragraph, or is not signed, I cringe.

When such documents are dictated and transcribed by a professional medical transcriptionist, they are usually properly formatted and many of the errors I note below are avoided. However, when the health professional types (or word-processes) his or her own document or, worse yet, hand writes it, this is when I see the most errors.

To avoid these errors that make your correspondence and written communications look unprofessional, follow these tips.

Remember Why You Are Writing.

Remember, the basic purpose of your correspondence is to communicate ideas effectively. In many cases, it will be to invoke your legal rights in certain situations (such as an appeal or a hearing request). Sometimes, it will attempt to persuade your hospital, peers, or employer to take a certain action or refrain from a certain action. Remember that your correspondence is often the first impression that the other side will have of you. Do you want it to be an impression that you are sloppy, lazy, unprofessional, not knowledgeable, uneducated, or confused?

Whether you are communicating in a letter or via e-mail, these rules still hold true. In many (if not all) situations involving legal proceedings or legal issues, it is probably best to communicate via a letter sent by U.S. mail or some other reliable delivery service (e.g., Federal Express, Airborne Express, DHL, etc.). Even if you are transmitting your information via e-mail, it is my suggestion to prepare it in the form of a paper letter (if your e-mail is not set up to insert your letterhead and signature block automatically) and then scans it in and send it electronically.

I discourage legal communications via e-mail in serious matters because e-mails are often difficult to obtain, isolate, and authenticate when you need them for hearings. Additionally, they are rarely secure, often available to many others who shouldn’t see them, and easily susceptible to being accidentally sent to others who should not see them at all.

Horror Stories of Unprofessional Correspondence.

Why do I feel this article is necessary? Because of all the truly horrible correspondence I have seen written by allegedly highly educated professionals, mostly physicians and nurses. That’s why!

True “Horror Stories” About Unprofessional Correspondence

Here are just a few examples of true “horror stories” regarding unprofessional correspondence:

The physician never wrote a separate response to any charges or allegations made against him after receiving letters from the Medical Staff advising him he was under investigation. He would just hand write (scribble, actually) his remarks on the bottoms and in the margins of whatever document was sent to him and then send it back.

A nurse practitioner was required to respond to serious negligence charges, resulting in an adverse outcome for a patient. On unlined paper, she hand-wrote a response letter that was not addressed to anyone, not dated, not signed, and did not state who was sending it. There was no name or signature on it.

A physician was required to provide his analysis of a patient’s case for peer review purposes within the hospital. His typed letter of three full pages, single-spaced, contained one long paragraph. I used to work for a Medical Corps Admiral when I was a Navy JAG Corps officer. The Admiral, a very educated and proper professional, would just glance at such correspondence and state: “I can tell this doctor doesn’t have any idea what he is talking about.” Failing to follow good correspondence procedures will show others your thoughts lack organization and cohesion. A document that lacks organization reflects a mind that lacks organization.

A health professional was required to complete an application for clinical privileges. He wrote all of the answers by hand, not even staying within the lines on the form, writing over the questions printed on the form and around in the margins of the application. This is what he signed and turned in to the credentials committee at the hospital. Believe me, this did not look very professional.

A physician was requested to respond to a medical staff inquiry from the hospital. Her response came back typed (actually word-processed) in a type font that was 22 characters per inch (cpi), almost too small to read. Perhaps she was just trying to save a sheet of paper. But many of us would have had to pull out a magnifying glass or put on reading glasses in order to be able to read it. Once it is scanned or faxed and then photocopied or re-scanned and re-faxed several times, it will be completely illegible. If you are actually trying to communicate your ideas, make your correspondence easier to read, not harder to read. This is my cardinal rule.

A dentist was notified of a pending complaint investigation being opened against her dental license. She wrote her response to the charges back to the investigator, without using any business address or title, and began her response statement with “Dear Sharon,”. Do not treat others informally, especially in professional or formal situations. You will be deemed to be unprofessional when you do so. The investigator is not your friend, your sister, or your mommy. Do not address her by her first name. Do not end the salutation with a comma, like you would a love letter. End it with a colon like you would a professional business letter.

30 Tips for Good Professional Correspondence.

Here are some pointers on professional communications that should be followed in all of your professional written communications about business, professional or legal matters, even in e-mails. Please note, that the terms below in quotation marks have certain defined meanings. If you don’t know what these terms mean, look them up.

1. Always remember that the reason you are sending the correspondence is to attempt to effectively and accurately communicate your position and ideas. If you are trying to make your message indecipherable or difficult to understand, ignore these tips. If you are trying to come across as someone who doesn’t give a damn about how he or she is perceived, ignore these tips. If you want to come across as unprofessional, ignore these tips.

2. Make sure you include your complete and correct “return address” and contact information if you are not using your own letterhead. This includes your physical or mailing address, telephone number, telefax number and e-mail address, so that the other party knows exactly how to reach you. In cases where you already have this on your letterhead, be sure to use your letterhead (but only your own). Also, it appears more professional to create a letterhead with the information in it and to use your new letterhead instead of having a professional business letter with a typed “return address.” However, a typed “return address” is better than none.

3. Don’t use someone else’s letterhead. Don’t use your hospital, medical group or institutional letterhead for your own personal communications, unless you are the owner. Use your personal letterhead (see above), instead. If you are being accused of poor utilization review, unprofessional conduct, or personal use of hospital (or company) property, then using someone else’s letterhead just helps prove the charge against you.

4. Date your correspondence. Date your correspondence. Date your correspondence. Nothing shows a lack of professionalism and lack of attention to detail as sharply as undated correspondence. It will certainly be difficult to prove when your letter or document was sent if you do not have a date on it. A year or two later, it may be completely impossible to do so. In case I forgot to mention it, be sure to date your correspondence.

5. Use titles or honorifics. In the “business address” of your correspondence, always use the complete name of the person to whom you are writing (if known) together with that person’s honorific or professional title (e.g., Mr., Ms., Dr., Nurse, Prof., Dean, etc.) This shows both respect and professionalism.

6. Always use the complete mailing address, including the title, of the person to whom you are sending the letter. The business address of your correspondence includes not only the person’s name and honorifics but the title or position and division within the institution or organization to which you are sending it. In the case of large organizations, you should include the building and suite or room numbers and any internal routing codes, designations, “mail stops” or other organizational routing codes, that the agency or business you are writing requires to route its mail internally. Large organizations, especially government agencies and insurance companies, all have large mail rooms that sort and route all mail the organization receives from any source. Correct internal routing codes will help ensure that your correspondence gets to the correct person or official in a timely manner. Often today companies scan or have all e-mails saved by a clerk, as well

7. Always use a salutation. This is self-explanatory but see below.

8. In your “salutation,” always use the person’s last name with a title or honorific. It is customary to use the term “Dear” in a salutation in formal writing, so this is permitted. But you may leave it out. For example, “Dear Secretary Jones:” or “Secretary Jones:” or “Dear Dr. Johnson:” or “Dr. Johnson:”; all of these are correct. Never refer to the person by that person’s first name in any type of formal correspondence or correspondence that anyone else might read. Never say: “Dear Sue:” or “Sharon:”. Even if you know these people well enough to call them by their first names, don’t do it in this situation; it’s unprofessional and may be interpreted as “talking down” to the person.

9. Always end your “salutation” with a colon, not a comma. A comma is only used in informal communications to those you know well or socially, such as a letter to your mother or a note to your girlfriend. Unless this is your mother or your girlfriend to whom you are writing, use a colon. For example, “Dear Secretary Jones,” or “Dear Sue,” is incorrect. “Dear Secretary Jones:” or “Ms. Smith:” is correct.

10. Type (or word-process) your correspondence or have it typed (or word-processed) for you; this is one reason transcriptionists, secretaries and clerks have jobs. Do not send handwritten letters in formal or professional matters. Do not write on the other person’s correspondence or documents and send them back. Prepare and send a professional-looking letter or e-mail, even if you must pay someone to type it for you (and if you are sending an e-mail, I know you can type a little bit yourself, anyway). To do otherwise is to show laziness, disrespect and unprofessionalism.

11. Always use a type font in your correspondence (including e-mails) of at least 12 points (10 characters per inch). Do not use small, difficult-to-read type fonts, for example, the size of the type font that most e-mail software defaults to. Smaller type fonts than 12 points become difficult to read, especially if scanned/rescanned, faxed/refaxed, or copied/recopied. Change the default font in your e-mail software or computer word processing software, if necessary. You can do this, regardless of how difficult it may seem at first; I know you can do it because I can do it. Make your professional correspondence easier to read, not more difficult to read.

12. Never use unprofessional-looking type fonts for your communications. Stay away from script-type fonts, italics, or novelty-type fonts. These are notoriously more difficult to read and look unprofessional. You are not publishing a flyer for a high school bake sale. Times New Roman, CG Times, and similar type fonts are more professional looking and easier for a person to read. Use Courier or Letter Gothic type fonts if necessary.

13. Keep the correspondence to which you are responding unmarked. One reason to not write on or mark up the other person’s documents or correspondence is that you may need them as evidence in a court of law or a hearing someday. Nothing looks less professional than a document you are trying to use as evidence when a different person has made handwritten marks all over it. The impression is similar to one in which a child with a box of crayons has gotten to it. You don’t want this or need this. Show respect and self-control. Keep the other side’s documents pristine. They will look much better that way as your “Exhibit 1” in the court hearing.

14. Use a good concise, descriptive reference line or subject line (often called the “re:” line). Make it a very brief summary. State what the content of your letter is actually about. State if you are responding to a letter or document that you received from the “addressee” (the person to whom you are addressing your correspondence) of your letter.

15. Include the recipient’s routing information. If the intended receiver of your letter or correspondence (the “addressee”) included reference numbers, file numbers, account numbers, case name and numbers, a policy number, an investigation number, a routing number, or other similar information on its letter to you, repeat these back in the reference line of your correspondence. This will help make sure that your correspondence gets routed to the correct file and recipient more timely. This is especially crucial in large organizations and government agencies.

16. The contents of the body of your correspondence should be easy to read and easy to understand. To this end, be sure to use short sentences and short paragraphs. Each paragraph should convey one idea. Use headers and section titles, if necessary, to organize your correspondence, especially if it is lengthy. Remember, headings within your letter that help to organize it are like street signs in a busy city. They will really help any subsequent reader (and this may be a judge, a jury or a Board of Mediciney) to navigate his, her or its way through your letter.

17. Be sure to skip a line between each paragraph and, preferably, indent the first line of each paragraph. [Note: Some writers will tell you not to indent the first line of each paragraph in professional correspondence; however, I feel that this makes the correspondence more difficult to read, so I encourage indenting or tabbing in on the first line of each paragraph.] This makes it easier on the reader and more likely that your ideas will not get lost in a crowd of words.

18. Keep your paragraphs short and to the point. Nothing turns readers off as much as a single lengthy paragraph written from margin to margin taking up the whole page. I suppose some people may have never been taught what paragraphs are. However, I am willing to bet that most were. These rare used even in foreign countries.

19. In longer correspondence, use section headings (in bold or underlined) or headings for each issue, to better organize it. Think of these as road signs on a long road. They help the reader to know where he or she is at any given time, and where he or she is going.

20. When using headers, skip two lines before the header and one line after the header. This helps to set off the new section and header and show a definite division.

21. Keep your language objective and professional. Do not ever use profanity [Oops, I just went back and removed the word “damn” I used above.] Do not ever use any comments even remotely resembling racism, sexism, or antisemitism or prejudice. Do not be sarcastic.

22. Be direct and concise in your language. To the greatest extent possible, use the same terminology and wording that the other party uses, or has used, or the wording used in whatever statutes, regulations, policies, procedures, instructions, or governing documents with which you are dealing (but also, be sure you know what the words and terms mean).

23. If you intend to request a formal hearing say “I request a formal hearing.” If you want a full refund, state: “I request a full refund.” If you want to appeal the decision, state: “I want to appeal the decision.” Don’t be wishy-washy or vague. For example, don’t say, “I am looking for an attorney to file an appeal for me,” when what you mean to say is “I appeal the decision” or “I request an appeal.” Say precisely what you want. Don’t be vague or leave the reader guessing.

24. If there are any deadlines by which you must respond, be aware of these and make sure your response is received by that date. Remember “received” means “actually received” by the correct person (or office) at the correct address. It does not mean “mailed by” or “postmarked by.” If you have correspondence or a document to which a response must be received by a ceratin date, you need to make sure it is actually in the receiving person’s hands by that date, even if you must hand carry it to that person. I will usually send important documents by two different methods, in case the mail man dies, the courier service’s plan crashes or the e-mail server goes down.

25. In closing your correspondence conclude by stating what action is next, whether this is action you intend to take, or action you are requesting the other party to take. For example: “I expect to hear from you within ten days as to whether you grant my request or not.” “Please contact me with hearing dates within the next fourteen days.” “I will forward you a refund within five days.” “I will send you my records within five days.”

26. Always advise the other party of exactly how they should contact you; provide multiple means of contacting you. If you are very busy or have an assistant who is authorized to act for you, provide that person’s name and contact information to use as an alternate, as well. Then be available to receive the return communication(s). Don’t give telephone numbers you never answer. Don’t provide an incorrect address (e-mail or physical).

27. In dealing with dates and deadlines, remember that ten days is ten days; fourteen days is fourteen days, twenty-one days is twenty-one days. Made up rules such as “weekends and holidays don’t count” are just that, made up (outside of formal court proceedings). If the other party has given you “fourteen days to respond,” this means fourteen days from the date on the letter, unless specifically stated otherwise. Fourteen days means fourteen days, unless it is specifically stated otherwise (e.g., “you have fourteen business days to reply”).

28. Include a professional closing above your signature. This should be “Sincerely,” “Sincerely yours,” “Respectfully,” “Respectfully submitted,” or some other professional closing. Do not conclude with “Love,” or “Very truly yours,” despite the tradition.

29. In your signature block, include your full typed name, with credentials and title or position listed. For example, your full name, followed by your degree and other credentials (e.g., “John J. Smith, M.D., F.A.A.C.P.”) should be on the line immediately below where you sign. Next should be listed your position within your organization (if applicable) (e.g., “Chair, Pediatrics Department”).

30. If you have enclosures, list them at the end of the correspondence, giving a brief or shortened description and numbering them (this is slightly different from military correspondence). List and number them in the order you discuss them in your correspondence. Be sure they are properly organized, labeled, and divided, especially if any are lengthy.

Following these simple rules, most people learn in middle school will help to keep your correspondence professional looking and in conformity with what most professionals see on a daily basis. If your correspondence is professional-looking, people will be more likely to think you are a professional and to treat you professionally.

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.

HHS Announces Voluntary Resolution Agreement With University Of Southern California Medical School to Settle Sex Discrimination Complaints

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

On June 15, 2022, the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), and the University of Southern California (USC), along with its medical enterprise, Keck Medicine of USC (KMUSC), entered into a voluntary resolution agreement or settlement. In a statement released to the public, HHS said the agreement would resolve a compliance review of KMUSC Entities’ policies and procedures for responding to sex discrimination complaints made by students, employees, or patients employed by, or participating in, any programs or activities receiving Federal financial assistance from HHS.

Read the press release in full here for more information.  HHS OCR initiated the compliance review on June 10, 2019, to assess KMUSC’s compliance with Title IX in its handling of sexual harassment complaints.

Compliance With Federal Civil Rights Obligations Under Title IX.

Pursuant to Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in federally assisted education programs or activities, KMUSC Entities have agreed to:

1. Periodically notify all students, employees, and patients engaged in, furthering, benefiting from, or responsible for any educational operation, program, or activity at KMUSC Entities of the name, title, office address, email address, and telephone number of the Title IX Coordinator and the Deputy EEO/Title IX Coordinator for Healthcare;

2. Institute a new chaperone policy requiring clinicians to have a medical chaperone present while performing a sensitive health examination;

3. Update employee training modules to include information regarding the requirements of Title IX in the healthcare setting, including potential Title IX issues that may arise in the context of the provider-patient relationship, the roles and responsibilities of chaperones, and the identification of those health care providers who are qualified and charged with determining the medical standard of care when such issues arise in the context of a possible Title IX matter; and

4. Ensure KMUSC’s Title IX policy and resolution processes are fully implemented and readily available to all students, employees, and patients with respect to any educational or other University operation, program, or activity at KMUSC Entities.

Read the HHS Voluntary Resolution Agreement.

To learn more about the changes that were made to Title IX regarding campus assault rules, click here to read my prior blog.

If You Are the Victim of Sex Abuse or Discrimination–Take Action.

Attorneys of The Health Law Firm are constantly being consulted by resident physicians, fellows, and medical students who are the victims of sexual abuse, harassment, or discrimination because of their sex, gender, medical condition race, or national origin. This may come from a program director, department chair, senior resident, or attending physician. It is very important to document this through a formal complaint before it gets out of hand or negatively affects your career. To get legal help navigating your way through a difficult situation, contact one of the experienced attorneys at The Health Law Firm.

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

The Health Law Firm routinely represents students, including medical students, dental students, nursing students, pharmacy students, resident physicians, and fellows, who have legal problems with their schools or programs. We also represent students, residents, and fellows in investigations, academic probation and suspensions, disciplinary hearings, clinical competence committee (CCC) hearings, and appeals of adverse actions taken against them. The Health Law Firm’s 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.

Sources:

Health Law & Business. “HHS Settles Title IX Bias Complaints With USC, Medical Center.” Bloomberg Law. (June 15, 2022). Web.

“USC Under Investigation for Title IX Violations in Handling Claims of Sexual Assault.” Thomas Law Offices. (July 25, 2018). Web.

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 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.

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.

 

 

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