Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eye. This attorney is a seasoned veteran. The series includes several pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and relevant. Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult an attorney licensed to practice in your state.
If your practice includes more than just you as an employee, then you may have an employee handbook. If you have an employee handbook now is the time to look for liability landmines within.
Let’s take a look at a few of these that commonly show up in medical practices:
- Do not remove this manual from the premises
Well, that certainly sounds reasonable, right? The handbook is there for staff reference, and employees should therefore leave it where it is.
Actually, though, that instruction is unlawful under the National Labor Relations Act (NLRA).
NLRA’s rationale is employees have a right to engage in collective labor-related action. All employees (other than supervisors) have the right to discuss their working conditions with each other and to act together to try to better those conditions. So any employer action that chills such activities violates the NLRA. In this case, a meeting of employees off-premises that requires the manual would not be able to take place, thereby limiting employees because they would likely not feel free to have such a meeting at the office.
What you need is at least two copies of the handbook – one that stays in the office for ready reference and one that a staff member can borrow. Ideally, however, every staff member should have their own copy so that no one can say they felt uncomfortable having to ask for the lending copy.
- All practice matters are to be considered confidential and may not be discussed outside the office
Many doctors confuse this with patient confidentiality issues. There is no question that patient confidentiality must be respected fully by all employees and that both HIPAA and state confidentiality laws must be followed. The handbook should include a section on this that also explicitly states the penalties for breaching these rules. In fact, such a section is helpful should a HIPAA complaint ever be made and a federal investigator come to the office or a lawsuit for damages be brought under state confidentiality law – you will want to show that you had strict policies in place for the handling of patient information.
What we are looking at here, however, are the business practices of the office, which can include what wages are paid or what benefits are offered. Trying to enforce confidentiality as to those issues violates the NLRA for a reason similar to the one that we just looked at. In this setting, employees would also be prevented from discussing their working conditions.
This is particularly relevant in the Twitterverse because social media and online communications are Protected Concerted Activity under Section 7 of the NLRA, which states that “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
This puts them under the category of activities that workers may engage in without fear of employer retaliation.
This is essentially an anti-union-busting law, but it is applied broadly to allow workers to be able to communicate about the circumstances of their work such as wages, benefits, and working conditions without fear. There does not have to be a union involved or any intent to form one for it to apply.
- Employees shall not discuss or reveal salaries or benefits received with/to each other
You very reasonably may not want employees comparing these because that leads to jealousy and dissension, but you actually cannot create this mandate since it violates the same aspect of the NLRA that we looked at in the first section.
- Gossiping will not be tolerated
This seems like a no-brainer – clearly gossiping is destructive to working relationships and can also violate patient confidentiality. However, as phrased this leaves it entirely up to the employer to decide what constitutes gossip. This section could be applied punitively to workers discussing the conditions of their work, which might include matters such as how other workers are dealt with preferentially, and so, again, would violate the NLRA.
This important workplace issue should instead be addressed in sections saying something like “Negative discussions about other staff members are destructive to workplace relationships. Employees are expected to be respectful to each other and to bring any issues with another staff member to their immediate supervisor.” and “Patient confidentiality must be respected at all times. Any unauthorized revelation of patient information, including in social conversations, will be grounds for dismissal.” These clearly indicate that what is being limited is truly gossip about co-workers or patients and not labor organizing or protected communication.
- Inform your immediate supervisor of any significant illness or disability
This is a very common error in medical practice employee handbooks, not in the least because they are, well, medically oriented businesses.
However, under the American with Disabilities Act (ADA), an employee does not have to reveal such information and the employer also cannot ask about such unless it limits the employee’s ability to carry out their job. Since the actual issue is therefore whether an accommodation will be needed for the employee to keep working, if you have 15 or more employees and so are under the ADA this should instead be phrased as something like “If you require an accommodation due to a physical or mental condition you should inform your immediate supervisor of such requirement as soon as possible.” This satisfies your practical need to know whether you will have to engage additional or substitute staff to keep your office functioning efficiently while also clearly showing that your intention is to keep the employee on if reasonably possible rather than to use their new problem as a reason to fire them.
- Pregnant employees who wish to continue working beyond their first trimester should submit a note from their physician that it is safe for them to do so
So here you are trying to reasonably accommodate the patient’s new medical condition while also making sure that it is safe to do so. This should be acceptable, shouldn’t it?
In a word, no.
Actually, this is the good deed that won’t go unpunished because it runs afoul of the Pregnancy Discrimination Act, which also applies if the practice has 15 or more employees. A pregnant employee who, for example, needs to be on her feet less, should instead present this as a need for an accommodation, as above.
- All overtime must be authorized or it will not be paid
This is absolutely illegal – it is simply not your option to withhold pay for work done. The Fair Labor Standards Act requires hours worked to be paid. The proper way to address this issue is “All over-time must be pre-authorized.”
You can then discipline or even fire a worker for foisting overtime on you that you did not want or need and that they did not get authorization for. Of course, you will still have to pay them for the work they actually did.
- Final paychecks will be held until (event such as all practice property is returned or all charts are completed)
Again, this is not up to you to limit. There is most likely a law in your state that specifies how fast a final paycheck must be issued and if there is not, then, the Federal law controls and that places the limit as being no longer than the employee’s next regular payday.
You can independently hold an ex-employee liable for the value of property they do not return or the value of billings that their incomplete work interferes with but you cannot hold their paycheck hostage.
These are just a few examples of how easy it is to fall into a legal violation with what seem to you to be commonsense rules, potentially turning what you thought was your protection into a guided missile aimed straight at your practice by an aggrieved employee. If your employee handbook is one that you have had around for frankly forever then it is probably time to hire an HR consultant to make sure that it is up-to-date on current law.
In summary: Seemingly innocuous or necessary rules in employee handbooks may actually violate federal or state law, including on labor organizing and disability. A physician employer should have their handbook reviewed by an HR consultant to make sure that it conforms to current law.
Medical Justice Notes: [Not all practices have an employee handbook. Some attorneys even suggest that such a handbook creates more problems than it solves. On the other hand, it does create reasonable expectations, which, if followed, and if the provisions are legal, may help you sidestep employee litigation. No less important, employee litigation can be expensive. Consider purchasing employee practices liability insurance (EPLI). It is reasonably priced and covers many employee lawsuits you could only dream about – or have nightmares about.]
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
