Jeffrey Segal, MD, JD - Medical Justice

Your collection agency might hurt your medical malpractice defense

August 15, 2024September 27, 2011 by Jeffrey Segal, MD, JD

Michael J. Sacopulos, Esq.

Several months ago the South Carolina Appellate Court issued a scary opinion (Burke V. AnMed Health). A standard medical malpractice case had come before a trial court in South Carolina. Prior to trial, the defense attorney asked that prospective jurors who owed bad debts and judgments to the healthcare provider be excluded from the jury. The trial court Judge did exclude several potential jurors who had judgments against them by the healthcare provider, but the Judge refused to excuse several jurors who owed debts to the medical provider. One $250,000 judgment later, the defendant appealed the matter to the South Carolina Court of Appeals.

“Unique” New Medical Malpractice Claims

August 15, 2024September 22, 2011 by Jeffrey Segal, MD, JD

Michael J. Sacopulos, Esq. As the general counsel for Medical Justice, I see a number of bizarre and unfair medical malpractice claims. However, recently I have read several claims that were so odd as to attract my attention. The first involves a surgical patient at Baylor Health Hospital in Dallas. A Nebraska man had traveled … Read more

Pay-Per-Call Marketing; Twenty First Century Marketing Programs Impeded by Twentieth Century Rules

August 15, 2024September 21, 2011 by Jeffrey Segal, MD, JD

OFPSA 2011, Fall By: Jeffrey Segal, MD, JD, FACS, et al. and Michael Sacopulos, JD Download 2011_08_OFPSA_Magazine_SegalSacopulos.pdf

Mistakes in Studies Surge – Lawsuits Sure to Follow

August 15, 2024September 21, 2011 by Jeffrey Segal, MD, JD

Jeff Segal, MD, JD, FACS

The Wall Street Journal recently reported on the growing number of scientific papers that are being retracted due to mistakes. In the article Mistakes in Scientific Studies Surge, the Journal reports that since 2001, while the number of papers published in research journals grew 44%, the number of articles retracted grew by more than 15-fold.

We Told You So….

August 15, 2024September 8, 2011 by Jeffrey Segal, MD, JD

Jeff Segal, MD, JD, FACS

We have written recently about social networking group discount programs – like Groupon. We cautioned that such programs might be deemed fee-splitting; a practice prohibited by federal law, state law, and licensing bodies. We now have some additional data points to share.

Not everyone knows what Groupon is. Here’s how it works. A local merchant, like a restaurant or hair salon, offers a discount – often 50% off or more. This gets a lot of attention. But, the discount isn’t activated until a critical mass of Groupon subscribers ‘tip” the deal. Enough people must commit to “paying” for the discount. That’s how Groupon gets paid.

I’ll illustrate a Groupon offered by a restaurant. The deal is 50% off a meal valued at $100. The deal is sent to thousands of people in the restaurant’s draw area. The deal requires 20 takers to “tip the deal.” Once 20 people commit, those patrons are charged $50 on their credit cards. Groupon will then give the patron a $100 “gift certificate.” Groupon then pays the restaurant a sum – which might be $25; maybe more; maybe less.

So, Groupon gets paid a handsome sum. The patron gets a great discount. And the merchant delivers products or services at a discount. The restaurant “pays” twice: a discount to the patron; and a fee, deducted by Groupon, for the marketing. The marketing fee correlates with the volume of business the restaurant receives.

In healthcare, this can be perceived as fee-splitting.

The federal government prohibits fee splitting for specific transactions unless there is a safe harbor. There is no safe harbor for social networking group discount programs.

State governments often have anti-kickback statutes, and to date, we know of no state that has carved out safe harbors for social networking group discount programs.

Finally, licensing boards have long standing policies against fee-splitting. And two such boards have recently spoken.

Tort Reform for Medical Malpractice System, Another Study Needed?

August 15, 2024September 7, 2011 by Jeffrey Segal, MD, JD

Michael Kirsch, M.D. – author, MD Whistleblower

Medical malpractice reform is in the news again. Of course, for the medical profession, the medical malpractice system is the wound that simply will not heal. For the plaintiffs bar, in contrast, the medical liability system is the gift that keeps on giving. I have argued that the current system fails on four important fronts.

Efficiency
Cost
Fairness
Quality Improvement

I admit readily that my profession has not been as diligent as it should be in holding ourselves accountable. We have not been forthright in admitting our medical errors, although can you blame us under the current medical liability construct? There is merit to the argument that tort reform is

Texas Enacts a New Patient Privacy Law that is More Stringent than HIPAA

August 15, 2024August 26, 2011 by Jeffrey Segal, MD, JD

Michael J. Sacopulos, Esq. Recently, Texas House Bill 300 was signed into law by Texas Governor Rick Perry. The new law, which will become effective on September 1, 2012, expands privacy rights of patients beyond those contained in the HIPAA privacy standards. The law was created in order to better secure patients’ protected health information … Read more

NEJM: The Numbers Are In: Doctors Are Sued A Lot

August 15, 2024August 18, 2011 by Jeffrey Segal, MD, JD

Jeff Segal, MD, JD, FACS

Imagine telling your patient the success rate of a surgical procedure you were planning was 20%. year after year. Most patients would hit the door. Unless the only other option – doing nothing – was far worse.

That’s precisely the conclusion drawn from Jena, et al. in a New England Journal of Medicine article released this week – Malpractice Risk According to Physician Specialty. Data was analyzed from a large national carrier covering time period 1991-2005. The researchers analyzed 230,000 physician-years of coverage.

Each year of the study period, 7.4% of all doctors had a malpractice claim. Only 20% of those led to payment – either by settlement or judgment. The majority of claims resulted in zero payment to the plaintiff. Remember, though, the typical claim lingers for about four years before final resolution.

More interesting was breakdown by specialty. Annual risk for being sued:

Affidavits of Merit, Are They Worthless?

August 15, 2024August 15, 2011 by Jeffrey Segal, MD, JD

Jeff Segal, MD, JD, FACS

Affidavits of merit, are they worthless?

Probably.

Ohio provides but one example of how well intended legislation can be diluted by judges.

Ohio introduced tort reforms in 2005. Among the reforms, plaintiffs were now required to prove they had done some homework before filing. The plaintiffs had to assert that a qualified expert had reviewed the case and determined the claims had merit. That Rule was known as 10(D)(2). What’s not to like? It’s like Mom and Apple Pie. Hardly controversial.

The steps are basic. The plaintiffs must give the relevant records to one or more qualified physicians to review. The physician must determine negligence may have occurred. Then, that physician must memorialize that conclusion in writing – the Affidavit of Merit. That’s it.

One would think that if nine different specialists were named in a single lawsuit, records would reasonably be reviewed by different specialists – penning multiple Affidavits of Merit. Such a process, if honored, would surely have the effect of deterring frivolous litigation against potential peripheral defendants. It would also neutralize shotgun lawsuits – where anyone whose name is on the chart is sued.

Ohio doctors report that more than one Affidavit of Merit is rarely filed. But lots of different specialists are corralled into single lawsuits.

In a recent Ohio case, a plaintiff sued six defendants; four practiced different specialties. A single affidavit was presented, signed by an out-of-state physician who didn’t practice in even one of relevant specialties. Read that statement again.

The doctors asked the court to dismiss the case, arguing that the Affidavit of Merit requirement – the bare minimum needed to initiate a case – was not met.

Here’s what the court replied:

Majority of Lawsuits Against Doctors Dismissed; But Not Quickly

August 15, 2024August 10, 2011 by Jeffrey Segal, MD, JD

Jeff Segal, MD, JD, FACS

An article in the July issue of Health Affairs detailed the natural history of malpractice claims in Massachusetts. Approximately 60% of these claims were abandoned by the plaintiff. But, this news came slowly to the doctor – who waited an average of 3 years after the claim was filed. During that time frame, costs were incurred to defend the case. And the doctor was burdened by a claim hanging over his or her head.

The study’s author, Dwight Golann, interviewed attorneys and insurance companies about the reasons for the abandoned claims.

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