Singularity Health Law Blog

EIGHT REFORMS TO MEDICAL PEER REVIEW

The fundamental problem with medical peer review today is that there are large segments of medical practice that are more art than science and that all professionals are human beings and occasionally make mistakes. The system of peer review provided under the Health Care Quality Improvement Act of 1986 (“HCQIA”) sets up an intensely adversarial system in which those privileged to review their peers are not accountable for bias, bad faith or malice if there is any colorable justification for complaint about the judgment or quality of care provided by the reviewed physician. Further, the results can destroy a peer reviewed physician who may up with a “record” in the National Practitioner Data Bank.

 

SHAM PEER REVIEW AND THE EVOLUTION OF IMMUNITY (PT.2)

SHAM PEER REVIEW AND THE EVOLUTION OF IMMUNITY (PT.2)

 

THE HEALTH CARE QUALITY IMPROVEMENT ACT OF 1986, 42 U.S.C. 11101-11152 (“HCQIA”)

 While the Patrick v. Burget case was winding its way toward the U.S. Supreme Court (See pt 1) Congress was concerned about the rise in medical malpractice cases and the apparent ineffectiveness of peer review which allowed incompetent physicians to move from state to state impunity when they were professionally “outed.” It was also concerned about the impact the Patrick case would have on the willingness of physicians to sit on peer review panels because of the potential liability. In the decade before 1987 there were more medical malpractice cases filed than in the entire prior history of tort law.  The AMA lobbied very hard for both confidentiality in peer review and immunity for the participants. Congressman Ron Wyden of Oregon introduced HCQIA legislation (Patrick was an Oregon case). 

 

CONCIERGE MEDICINE: INSURANCE BUSINESS IMPLICATIONS

 As this country moves along the continuing and inevitable process of three tier medicine there has been a lot of attention directed toward the top tier of concierge medicine, which is generally more personalized and convenient care provided in exchange for an annual fee.  There are a number of different models of concierge care, but the purist contemplates a pure cash transaction for heightened or on-call services, sometimes in the home.  The concept grew out of care provided by team doctors for professional athletes hired by the Seattle Supersonics in the mid-1990’s and has expanded rapidly, particularly in Washington and Florida. Along the way, concierge medicine has raised concerns over potentially implicating state insurance laws, which vary widely in their potential application to concierge medicine.

 

THE DOCTOR WHO WILL SEE YOU NOW COULD BE A NURSE.

The New York Times reported today that there is a growing number of nurses who are obtaining clinical doctorates in nursing and representing themselves as “doctors” to the chagrin of some physicians. This year there are some 153 nursing schools in the United States that will extend some 7,037 doctorate degrees in nursing. The physicians apparently see the potential for confusion among patients and the erosion of the status of being called “doctor.”  Some physicians cling so closely to the term that they loose their identity without it.  It is if they received the name “doctor” as their given first name. How many times has one been self introduced to a doctor who says “Hello, I am Dr. Smith.”  There are some women married to physicians who refer to and address their husbands as “doctor.”

 

FEDERAL APPEALS COURT RULES ALABAMA DENTAL BOARD NOT IMMUNE FROM SUIT UNDER THE 11TH AMENDMENT.

Any agency considered to be an “arm of the state” is generally immune  from liability in federal court under the provisions of the 11th Amendment to the United States Constitution. In August, the 11th Circuit Court of Appeals ruled that the Alabama Board of Dental Examiners was not immune from liability because under state law it was not an “arm of the state.”  While the immunity issue is one of federal law, federal courts defer to the state law as to whether the an entity is the State.  In Miciosuki Tribe of Indians v. Fla. Athletic Commission, 226 F 3d 1226 (11th Cir. 2000), the federal court defined the analytic criteria for a determination of immunity listing 4 factors: 1) how state law defines the entity; 2) the degree of control the state maintains over the entity; 3) where the entity derives its funds; and 4) what entity is responsible for judgments against the entity.

 

FLORIDA DOCS GRAPPLE OVER GUN GAG LAW.

Is there a sexual gratification component in gun ownership? Just a question.  It was only back in the 1960s when the United States Supreme Court held that a Connecticut statute banning any discussion of birth control was deemed unconstitutional. Last May the State of Florida passed a bill making it illegal for physicians to ask questions of patients about gun ownership, more particularly gun availability in the household. Pediatricians, long concerned about the availability of danger in homes, have taken to ask questions about gun access for children in the home along with other dangers such as “swimming pools” in the back yard.  The espoused intent is to suggest to parents that precautions be taken to limit child access to guns in the household, by having them properly stored.

 

FTC DRILLS N.CAROLINA DENTAL BOARD FOR LIMITING TEETH WHITENING SERVICES TO DENTISTS.

On July 14, 2011, an administrative law judge took the North Carolina Board of Dental Examiners to task for limiting “teeth whitening” services to dentists in North Carolina.  The Board had sent cease and desist and similar orders to 42 non-dentist providing teeth whitening services accusing them of the unlawful practice of dentistry. The Board previously filed a federal law suit seeking to enjoin the interference of the FDA on the basis that it lacked jurisdiction over the Board, that the Board was immune under the “state action” doctrine and that the FTC was constitutionally prohibited from preempting state law.  It lost on all counts.

 

EMPLOYED PHYSICIANS AND MALPRACTICE INSURANCE COVERAGE - RIGHT TO APPROVE SETTLEMENTS?

As more physicians elect to join larger physician groups and hospitals as employed physicians many are finding to their surprise that the professional liability policies provided to them by their employers fail to include the right on the part of the physician to approve any settlement.  It is not unheard of for insurance companies to settle a case without the knowledge, consent or approval of their insureds.  This can have a significant impact on the future and career of a physician because all malpractice National Practitioner Data Bank.  All hospitals are required to access NPDB each time a physician is re-credentialed.  Having a NPDB report is treated by some potential employers and credentialling hospitals as equivalent to “having a record.”

 

METHADONE CAN BE A “REASONABLE ACCOMMODATION” FOR ADDICTED NURSE UNDER THE AMERICANS WITH DISABILITY ACT

    A federal district court in the middle district of Pennsylvania denied a motion to dismiss and ADA claim by an opiate dependent nurse who was clean but participating in a methadone program to avoid relapse.   The Methadone program required frequent opioid testing to insure compliance with the program.  The Pennsylvania Board of Nursing had a secret policy prohibiting the licensing of any nurse on Methadone. 

LITERALISM RULES IN RESPONDING TO MEDICAL BOARD QUESTIONAIRE.

Dr. Savitra Bhama, a psychiatrist born in the former West Pakistan in 1934 has a license to practice medicine in Michigan and Kentucky. She applied for a license to practice in the State of Ohio. In the questionnaire that the State Medical Board of Ohio required to be submitted along with her application she was asked whether she had ever been terminated or resigned from a position she held or was ever asked to resign. She answered “no” to the question after interpreting the question in the context of her perception of the interests of the board to mean termination or resignation related to the actions related to patient care. The literal answer to the question was “yes.” Dr. Bhama argued that she had no intent to deceive the board and cited as evidence the fact that she disclosed her complete employment history and given the number of positions the board would have known that she terminated or was terminated from several positions. The Ohio board determined that her answer constituted a false, fraudulent, deceptive, or misleading statement” in order to secure a license and denied her application.