Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Executive Summary
The U.S. legal system is perhaps the most complex in the world. Over the past 20 years, health care has evolved into one of the most regulated and complicated areas of U.S. law. Each patient encounter involves myriad compliance issues. Most transactions implicate often obscure rules and regulations, and attorneys practicing health care law must devote hours each week just to keep up with the ever-changing laws affecting physicians and their practices. An attorney in general practice is no more qualified to handle physicians’ legal matters than a family practitioner is qualified to perform transplant surgery.
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Mistake 1 Thinking: “I’m a Good Doctor—Nothing Bad Can Happen to Me”
Bad things can happen to good doctors. Malpractice cases often have little to do with malpractice and everything to do with the nature and extent of injury. Errors beyond the control of the physician can create dire problems. A recent transplant case at Duke University Medical Center, where organ procurement personnel failed to confirm the blood type of the donor, almost destroyed the career of a prominent transplant surgeon because he took responsibility for the care of the patient, though he had no direct responsibility to check tissue type. Innocent physicians have been repeatedly accused of sexual impropriety toward patients, who often misinterpret appropriate examination for sexual misconduct. A disgruntled employee can create enormous problems for the unwary physician. Having done nothing wrong is no guarantee that problems will not escalate.
Action Step Physicians should take every complaint seriously. No matter how absurd it may seem, every complaint must be addressed in a timely, considered fashion. Serious allegations, no matter how absurd they may seem, must be addressed with great care.
Mistake 2 Thinking: “I Have an IQ of 160, Graduated Magna Cum Laude, and Know Better”
Physicians are, undoubtedly, among the best and the brightest members of society. Yet the skills and analytical tools that make physicians great at practicing medicine are very different from the skills and methods used effectively by a highly skilled attorney. Medicine is predominantly science based. Medical decisions are made in conformance with recognized standards and expected results. Legal analysis is far less evidence based. It is often far more dependent on nuance and shading than proven effect. The rules associated with the practice of law can appear Byzantine, convoluted, inefficient, and counterintuitive. Outcome is based on the subjective analysis of judge or jury rather than on predictable science.
Action Step Physicians should accept the fact that the skill set associated with the practice of law is far different from the skill set associated with the practice of medicine. They should rely on the expertise of qualified legal counsel, and remember the adage, “He who represents himself often has a fool for a client.”
Mistake 3 Choosing the Wrong Attorney
Finding the right lawyer is as important as finding the right physician. The wrong lawyer can easily make matters worse. Health care law is now one of the most complex and complicated areas of law, and health care lawyers devote tremendous time and effort simply to keep current. Even attorneys who specialize in health care law cannot, individually, maintain the requisite knowledge to handle all aspects of health care practice. A good health care law firm must include health care lawyers who subspecialize in different areas of health care law, including health care regulation, administrative law, transactional and contract law, litigation, labor and tax law, and criminal law.
Action Step Physicians should be sure that their attorney devotes full time and attention to health care law and is part of a practice that is fully familiar with all aspects of heath-care-related law.
Mistake 4 Failing to Appreciate That Personal Activities Can Affect Professional Practice
Even the most mundane legal problem can have a dramatic effect on a physician’s career. A conviction for driving under the influence of alcohol will almost certainly be reported to the physician’s licensing board, as will a domestic violence complaint. Licensing boards take these matters seriously. A civil suit by a patient, an employee, or a coworker accusing a physician of sexual harassment can have a devastating effect on a physician’s career. Settling a civil case or a criminal matter with an admission and a “slap on the wrist” instead of ending a problem can trigger greater problems, including loss of license, loss of hospital privileges, and removal from managed care panels. Even the most mundane legal problem can spin out of control. As a physician, every legal problem must be viewed from a career perspective, and should not be addressed without the input of competent health care counsel.
Action Step Whenever a physician’s actions or conduct is questioned, the physician should consult with health care counsel to confirm that there will be no effect on the physician’s professional practice.
Mistake 5 Assuming That a Medical Malpractice Lawyer Is a Health Care Lawyer
Lawyers who defend medical malpractice cases devote their time to litigating whether physicians deviated from recognized standards of medical care. These attorneys are, generally, highly skilled in presenting these questions to juries and understanding the legal and evidentiary laws required to prepare and try a civil case. They rarely, however, address the myriad rules and regulations affecting the practice of medicine; generally do not appear regularly before state licensing boards or other administrative agencies, where legal and evidentiary laws are quite different; and do not routinely involve themselves in contractual and transactional matters.
Action Step Before deciding to use a medical malpractice attorney to handle other legal matters, physicians should be certain that the lawyer regularly appears before state licensing boards and other health care administrative agencies, knows the entire regulatory scheme (including the relevant state’s medical practice act, Medicare fraud and abuse regulations, the Health Insurance Portability and Accountability Act (HIPAA), and the Occupational Safety and Health Act), and is familiar with managed care contracting, state laws involving restrictive covenants, employment and tax laws, and other areas of health care law.
Mistake 6 Thinking: “My Insurer-Appointed Lawyer Has No Interests Other Than Mine”
While an insurer-appointed lawyer is legally obligated to represent a physician’s interests, the reality can be quite different, since such lawyers are paid by the carrier. If the insurer becomes unhappy with the services of the lawyer, the lawyer can lose a significant portion, if not all, of his or her income. Thus, the lawyer’s actions will be dictated by the desires of the person paying the bills. Insurers are understandably concerned about the cost of litigation and the potential cost of any verdict. Therefore, an insurer’s decisions are driven by the insurer’s own economic analysis. If a case can be settled for less than the costs of litigation, the insurer may pressure counsel and the physician to settle the case. Concerned about costs, the insurer may also prohibit its lawyers from retaining the most qualified experts, hiring investigators, or aggressively pursuing discovery. Of course, any settlement will have significant repercussions for the physician. Settlements must be reported to the National Practitioner Data Bank, will increase costs of future malpractice premiums, and could interfere with managed care contracts, hospital privileges, and even licensure. Many states are now “profiling” physicians on their websites, so consumers will have instant access to physicians’ malpractice history. Therefore, the physician’s interest may be far better served by an aggressive defense through litigation than a pro forma defense in anticipation of settlement. This will create a conflict that places the insurer-appointed lawyer right in the middle.
Action Step If at any stage of litigation the physician suspects that the case is not being aggressively handled, necessary experts are not being retained, leads are not being pursued, or that the insurer-appointed attorney is pursuing settlement, the physician should obtain a second opinion from a health care attorney with malpractice litigation experience who is, preferably, not tied to any insurer.
Mistake 7 Failing to Appreciate the Needs of the Opponent
Whether negotiating a contract, entering into an employment agreement, or dealing with an investigation by state or federal regulators, it is critical to understand the needs, motivations, strengths, and weaknesses of the opponent. If a person takes a position that leaves the opponent with no alternatives, that person is likely to fail. If a person overestimates the opponent, that person will give more than is necessary. The following passage, quoted in Internal Bleeding by Robert Wachter, MD, and Kaveh Shojania, MD, illustrates the point.
U.S. Captain: “Please divert your course five degrees to the south to avoid collision.”
Canadian Radio Operator: “Recommend you divert your course fifteen degrees north to avoid collision.”
U.S. Captain: “This is the captain of a U.S. naval vessel. I say again, divert your course.”
Canadian Radio Operator: “No, sir. I say again, you divert your course.”
U.S. Captain: “This is the aircraft carrier U.S.S. Coral Sea. We are a large warship of the United States Navy. Divert your course now!!!”
Canadian Radio Operator: “This is a lighthouse. Your call.”
When entering into a new venture or relationship, considering bringing a lawsuit, defending a lawsuit, seeking to resolve litigation, recruiting a new employee, seeking employment, or engaging in any other activity involving another party, success will be directly related to one’s ability to size up the strengths and weaknesses, as well as the needs and motivations, of the opponent. Where the opponent’s needs and motivations parallel the physician’s, the physician should take advantage of those factors in framing his or her position and negotiating strategy.
Action Step Physicians should fully evaluate the needs, expectations, and motivations of their opponent before addressing any problem. Their strategy is most likely to succeed when they can find common ground with their opponent or can exploit his or her weaknesses.
Mistake 8 Failing to Read the Fine Print
Contracts are rarely written in simple, understandable English. If the words aren’t completely understandable, chances are they may have a hidden meaning. Managed care contracts, for example, often include language requiring that physicians provide care to plan members as well as to members of other affiliated plans or groups. Termination provisions can be onerous, requiring physicians to continue to treat patients for long periods of time, even if the payor fails to pay the physician. Hold harmless and indemnification provisions can place the physician’s personal assets at risk.
Action Step Physicians should not sign any contract in which they are not certain of the meaning of each and every term. They should read and understand every term of every contract or agreement before they sign it. If they find that the language is not clear and unambiguous, they should consult with qualified health care counsel before they sign.
Mistake 9 Volunteering Information
Meeting with an investigator, responding to an inquiry by a regulatory body, or speaking to a member of the media is always risky. If responding in writing, physicians should be certain to answer only the question asked and not to volunteer information beyond that requested. The more information the physician provides, the more avenues of inquiry he or she opens. When appearing in person, it is difficult for the physician to limit inquiries or keep the questioner from wandering into areas not anticipated in advance. A competent attorney will help limit the scope of inquiry and, in the process, deflect any of the questioner’s frustration from the physician to the attorney. Knowing what questions to answer and what questions to refuse to answer is an art, developed from years of experience.
Action Step Physicians should not volunteer. They should never appear before an investigative body or speak with an investigator or a member of the media without experienced health care counsel present.
Mistake 10 Trusting the Wrong People
A hospital, an insurer, or even a colleague can be a good friend today and the worst enemy tomorrow. No one wants to take blame and no one wants to pay for his or her mistakes. When it comes down to who takes the blame, from any individual’s perspective, it should be the other guy! Anything a person says to others, even those whom that person trusts, can and will be used against that person if their interests diverge. Whether a codefendant in a malpractice case or a possible target of a criminal investigation, a physician’s words will be used against him or her. In many states, even a spouse can be subpoenaed to give testimony against his or her spouse. Unless the physician is speaking to his or her own attorney, there is rarely a privilege to prevent that communication from being used against the physician. While codefendants may seem to have the same interests as the physician’s, their interests can dramatically change over time.
Action Step Physicians should always assume that their conversations about matters that could result in investigation or litigation will ultimately be used against them. If they do not want their conversation to become known to a potential adversary, they should not enter into the conversation. Today’s friend could become tomorrow’s nightmare.
Conclusion
Physicians who follow the action steps related to these mistakes are more likely to avoid unnecessary legal matters.
Written by: Steven I. Kern, Esq.
Peer reviewed by: Robert Conroy, Esq.