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How a Recent Interpretation of the Wisconsin "Borrowing Statute" Will Affect Multi-State Healthcare Practices in Wisconsin

Wisconsin businesses, including physician groups, clinics, and hospitals, operating across state lines facing personal injury exposure should be aware of a recent Wisconsin Court of Appeals opinion defining a clear test to evaluate whether a claim is untimely: Paynter v. ProAssurance Ins. Co., No. 2017AP739 (Mar. 27, 2018). The newly defined test specifically affects medical malpractice claims alleging a misdiagnosis and others where the claimed injury becomes apparent only after the alleged negligent conduct. Even if the subject conduct occurred in Wisconsin, a Wisconsin court can "borrow" the statute of limitations from another state if such an injury occurs outside the State in certain instances. In this case, the court declared Wisconsin "borrows" another State's statute of limitations when the first instance of "greater harm," greater than that which existed at the time of the subject conduct, occurs outside of Wisconsin. More ›

Midlevel Health Care Providers in Illinois and the Physicians They Collaborate With Should Take Note of Recent Legislation Impacting Their Practice

Illinois Senate Bill 2904—signed into law as Public Act 100-605 in July 2018 and going into effect on January 1, 2019—will increase the number of physician assistants (PAs) with which a physician may collaborate from five to seven. It also creates an exception for services provided in a federal primary care health professional shortage area (HPSA)—in those areas with a HPSA score of 12 or greater, there is no statutory maximum on the number of PAs with which a physician may collaborate. The new legislation will also grant the Department the authority to discipline both physicians and physician assistants (under the relevant practice Acts) for (1) entering into an excessive number of written collaborative agreements resulting in an inability to adequately collaborate, and (2) the repeated failure to adequately collaborate with the collaborating provider. These changes are effective January 1. More ›

Sixth Circuit Applies Escobar Ruling in Decision to Resuscitate False Claims Act Case

The United States Court of Appeals for the Sixth Circuit recently resuscitated a qui tam action under the False Claims Act (FCA), and, in so doing, held that the relator had properly alleged materiality under the U.S. Supreme Court's decision in Universal Health Services Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2002 (2016). The Sixth Circuit's decision, U.S. ex rel. Prather v. Brookdale Senior Living Communities, Inc., 892 F.3d 22 (6th Cir. June 11, 2018) addressed a relator's claims under the FCA. The FCA imposes civil liability on those who defraud the federal government by levying fines and penalties, including up to three times the government's damages. Private persons called relators file lawsuits or qui tam actions for violations of the FCA on behalf of the government. More ›

More than 600 Healthcare Professionals Hit by DOJ with Medicare Fraud Charges

The number of criminal charges filed annually by the Department of Justice (DOJ) against health care providers and professionals continues to escalate. On June 28, 2018, the DOJ announced that the Medicare Fraud Strike Force had charged 601 individuals across the United States, including more than 150 physicians, nurses, and other licensed medical professionals for participating in health care fraud schemes involving more than $2 billion in false billings this summer. At the same time, the U.S. Department of Health and Human Services initiated suspension actions against numerous providers, including doctors, nurses, and pharmacists. More ›

What Medical Providers and Hospitals should know before Prescribing Opioids in Illinois

We are in the middle of the deadliest drug crisis in U.S. history: the opioid epidemic. Federal, state, and local governments are scrambling to come up with a solution, along with health care providers, public interest groups, and the families of those affected. The statistics are shocking. According to a recent report from the Center for Disease Control and Prevention, overdoses from opioids increased by a staggering 29.7 % last year alone. The Illinois Department of Public Health reported that opioid overdoses have killed nearly 11,000 people since 2008 in Illinois, with 2,000 deaths occurring in 2017. How does this happen, and what are the solutions? It's an epidemic-sized question to tackle. More ›

NLRB Evaluation of Personnel Handbook Finds Moonlighting Policy Unlawful

Health care employers should take note of a recent decision of an Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) which struck down a number of employer policies in a Personnel Handbook, including a limitation on anti-moonlighting. Anti-moonlighting provisions are common in health care provider contracts and in personnel manuals of health care providers, including group practices, hospitals and other larger health care employers. The reasons for such rules in the health care setting are straightforward and largely non-controversial. They include the fact that risk to patients go up if employees are fatigued at work. Health care providers also may require varying shifts or mandatory overtime. Such rules minimize workplace conflict when employees are unable to satisfy the staffing requirements of their primary employer because of a second job commitment. Obviously, working for a competitor provider is also something that most group practices, hospitals and other providers, seek to limit. More ›

What Medical Providers should know about "Custom and Habit" Testimony

"If it wasn't charted, it didn't happen." Most medical providers have heard the adage, but is it true? Due to the realities of practicing medicine, health care providers are occasionally unable to document each and every aspect of their care within the medical record. What's more, a medical provider's recollection of a given patient's care can fade by the time a lawsuit is filed. So how might a nurse, mid-level, or doctor handle an aggressive Plaintiff's attorney who questions how, in the absence of documentation and recollection, a provider can nevertheless testify that a certain type of care was provided? Some providers can rely on their "custom and habit" to explain how they treat similar patients under a specific set of circumstances. In other situations, like Szekeres v. Mary T. Riggs, however, "custom and habit" testimony can be inadmissible. More ›

Using Electronic Medical Records to Combat the U.S. Opioid Crisis

In 2017, President Donald Trump declared the opioid crisis a national public health emergency. According to the most recent data gathered by the Centers for Disease Control and Prevention (CDC), more than 40% of all U.S. opioid deaths in 2016 involved a prescription opioid, with more than 46 people dying every day from overdoses involving prescription opioids. While stakeholders across the healthcare continuum are fighting the opioid crisis on many fronts, optimizing electronic medical records (EMR) technology has become a significant legislative and regulatory priority in this battle.  More ›

Court Holds Alteration of Medical Record does not Create Inference of Falsification

Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707

We're going to begin exploration of this recent Illinois decision, by referencing one of our favorite movies: The Verdict (1982) starring Paul Newman. In the movie, Newman's character, lawyer Frank Galvin, wins a medical malpractice trial on behalf of Deborah Anne Kaye against St. Catherine Leboure Hospital. During the trial, Galvin elicits testimony from Nurse Kaitlin Costello Price that the patient had eaten just one hour before a surgery during which she aspirated, resulting in her paralyzation and permanent vegetative state. On cross-examination from defense counsel for the Hospital, Nurse Kaye produces a photocopy of the original medical record which proves she had noted the time at which the patient last ate, as well as that the record had been altered by an anesthesiologist, Dr. Robert Towler, to conceal that fact. While the able defense attorney convinces the trial judge to suppress evidence of the altered record—as well as to issue an admonishing instruction to the jury to disregard all Nurse Price's testimony—the jury renders a guilty verdict, and even asks if it can increase the amount awarded to Mrs. Kaye's family.

With the advent of electronic medical records and audit trails, the ability of healthcare providers to deliberately alter medical records with the intention of concealing harmful information—all without being noticed—is limited at best. But what happens when a known alteration of a medical record calls into question the validity of a material fact? Is evidence of the alteration admissible? Does such evidence create an inference of falsification? These issues were addressed in Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707. More ›

Provider Defending a ZPIC Audit Fights Back With Significant Victory at Fifth Circuit

Imagine as a lawyer having to tell your client that the practice that they spent their career building may very well go bankrupt, without even the chance to have their day in court. That was exactly the situation at issue for a medical practice subject to a ZPIC audit. At issue was the ability of CMS to collect on alleged overpayments before final adjudication.

What the practitioner did in a case decided by the Fifth Circuit a few weeks ago provides a game plan for all providers confronting similar circumstances. In Family Rehabilitation Inc. v. Azar, attorneys representing the practice sought an injunction against CMS precluding the agency from recouping the alleged overpayment until the appeal had been decided by the Administrative Law Judge. The injunction was dismissed at the lower court level, but the group appealed the case and won. More ›

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