Healthcare Risk Management – March 1, 2021
March 1, 2021
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Physician Judgment Case Might Mean More Risk from FCA
Clinicians make judgment calls every day that do not always turn out to be correct, even when they are made in good faith. A recent court decision regarding the medical necessity of hospice care could put clinicians and hospitals at risk of False Claims Act allegations when judgment calls turn out wrong.
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Changes to Stark Law Create Leeway for Inadvertent Errors
Proposed changes to the Physician Self-Referral Law (Stark Law) and other laws would give healthcare organizations more ability to avoid self-disclosure and refunds. The changes are expected to be finalized soon.
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Closed Claims Study Shows Pain Management Risks as COVID-19 Contributes
An analysis of closed medical malpractice claims related to pain management identifies common areas of risk and reveals the COVID-19 pandemic has created new possibilities for liability. A top contributing factor in 90% of all closed claims was insufficient consent between the physician and the patient or family.
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Biden Administration Expected to Expand Enforcement; Pandemic Grants Targeted
The enforcement of white-collar crime laws in the healthcare sector is likely to expand under the Biden administration, particularly regarding fraud associated with the billions of dollars in grants Congress allocated to hospitals and other health providers for pandemic relief.
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$12.5 Million False Claims Act Settlement Shows Government Loss Not Required
A False Claims Act lawsuit involving alleged kickbacks for placing drugs on formularies has been settled for $12.5 million. The case is instructive because it shows the False Claims Act can apply even when the government has not lost money from the alleged violations.
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Finger-Pointing in Nurse Charting Is Opportunity for Plaintiff
Emergency nurses and physicians may not understand the liability implications of using charts to air grievances. A unified defense is recognized as the best approach for all defendants in ED malpractice claims, but finger-pointing notes make it difficult. Physicians and nurses should meet briefly before each shift to discuss the importance of teamwork, not only regarding patient care but also documentation.
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Court of Appeals Reverses Doctor’s Trial Court Win in Botched Spinal Surgery Case
Although the plaintiff’s expert provided some controversial comments on the standard of care, it is likely that, if given his well-established expertise, a proper analysis and explanation of his testimony will, at the very least, increase the plaintiff’s odds of obtaining a favorable verdict. There always is a standard of care, especially for relatively common procedures. The standard may not exist in written form. Instead, it is considered to be what a reasonable physician would do in similar circumstances within the same community.
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North Carolina Supreme Court Rejects Loss of Chance Doctrine
The loss of chance doctrine can be a strong tool for plaintiffs to recover damages when a physician’s failure to follow a certain course of treatment resulted in the patient losing the opportunity of a better outcome. It is important to consult with qualified legal counsel in the local jurisdiction to ascertain whether it applies, and with what potential nuances.
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Lessons Learned from Overturned $4.3 Million HIPAA Penalty
A covered entity’s victory over proposed penalties from the Department of Health and Human Services was good news for those responsible for HIPAA compliance, showing that good faith efforts and a willingness to fight the allegations can pay off.
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OCR Audit Findings Show Where to Focus HIPAA Compliance
Covered entities should take note of some key findings from audits conducted by the OCR in 2016 and 2017. OCR assessed covered entities’ and business associates’ compliance with selected provisions of HIPAA rules.