We understand the impulse. Someone said something ugly about you. It might be a patient. Another doctor, perhaps. They said it publicly. Online. You want to even the score. Sue them. Teach them a lesson.

There is no shortage of attorneys willing to take your cash to help you in your mission.

Before jumping off the cliff, ask your attorney this one question. “Can I be burned under anti-SLAPP?”

If your attorney answers, “What’s that?’ or “Huh?”, don’t walk away. Run.

We’ll answer that question for you.

SLAPP stands for Strategic Lawsuit Against Public Participation.

Anti-SLAPP are laws designed to prevent people from filing SLAPP lawsuits. In other words, Anti-SLAPP is designed to prevent Strategic Lawsuit Against Public Participations.

Confusing? Read on.

SLAPP can be a lawsuit alleging defamation (in a prototypical example, a doctor filing a lawsuit against a patient for a nasty online review). The real aim in SLAPP is stifling speech, not addressing a wrong. If a plaintiff (in this case, the doctor) CAN prove actual defamation, that is not SLAPP. But if there is no legal defamation, and a well-heeled plaintiff is just hoping the defendant will not have the funds to defend, and he can be bullied into taking their negative review down, that could be SLAPP.

The first step in determining whether SLAPP applies is analyzing whether a doctor has a bona fide case for defamation. Defamation is a false statement made to a third party that damages reputation. Defenses against allegations of defamation include the statement was an opinion, hyperbole, or privileged.

Let’s look at some examples.

If the patient proves his statement was an opinion, or not a false statement of fact, the patient will win. The patient will successfully defend. What is fact and what is opinion can be a hair-splitting exercise.

Examples of allegations that fail to support a defamation claim include where a patient rates his subjective assessment of the physician’s priorities, values, or demeanor, or where the patient relates an emotional reaction to treatment received. Applying the opinion and hyperbole factors, an Ohio court held that a patient’s statement that the dentist’s office  “‘billed my insurance company for the same thing they billed me for'” was not privileged opinion, as this fact was (1) based upon firsthand knowledge, (2) readily verifiable, and (3) a reasonable viewer would assume this statement was true.^[1]

Conversely, the same Ohio court simultaneously held other statements made by the patient alleging that the dentist’s office “doesn’t care about the customer or the patient,” and that “they care about their money” were statements of protected opinion, because (1) the statements were intended to elicit an emotional response from the reader, (2) the characterizations were subjective and thus not readily verifiable, and (3) a reasonable viewer would only have believed that these descriptions reflected a disgruntled patient’s opinion about the treatment received.    

Next, a surgeon sued the ABC television network over a hidden camera investigation into his surgical record. The report had been broadcast on the television program “20/20.” The plaintiff-doctor argued that statements made during the program by a former patient concerning her subjective assessment of her own pain and fear were verifiably false, as medically she was never at risk of dying, and her condition was typical of other similarly situated patients.  However, the court ruled the statements protected opinion.[2]

Dr. Fowler argues that [his former patient]’s statements that she was “in such pain, I was just screaming.  And my friends were concerned that I was not going to survive it” were false because [the patient] was not suffering more than other liposuction patients, she was not at risk of dying, and her friends were not concerned for her survival.  Yet Dr. Fowler’s evidence does not demonstrate the falsity of the statements.

[The patient]’s statement that she was “in such pain, I was just screaming. And my friends were concerned that I was not going to survive it” is a statement made by [the patient] concerning her own condition.  Dr. Fowler does not provide any evidence that her statements are not true.  Moreover, Defendants have submitted affidavits from two of [her] friends who attest to the fact that [she] was moaning and screaming in pain and that they were concerned she was not going to survive the infection.

If the statement is considered protected opinion, the plaintiff (in this case, the doctor) loses.

What about hyperbolic statements? Are they considered protected opinions?

The internet has become a clearinghouse for hyperbole and exaggeration. Because the internet has THAT reputation, statements that may be close calls are treated as protected subjective opinion. The following are statements on a single rating site that likely would be treated as hyperbolic exaggeration and unlikely to yield a monetary award for defamation had a suit been filed.

“I felt like I’d been raped when she finished with me.”

“He is the worst Plastic Surgeon other than the New York butcher.”

“This guy is a criminal.”

“He is an outrageous, arrogant, horrible person who should be in jail.”

“Dr. XXX is the ABSOLUTE WORST doctor there is.”

“He probably got his degree from some foreign country. Stay away from [this] medical prostitute.”

Now back to our original topic, anti-SLAPP, and why it’s important for your attorney to know the status of anti-SLAPP laws of YOUR state.

Anti-SLAPP are state statutes focused on preventing SLAPP lawsuits. Some states, such as California, Texas, and more recently, New York, have robust anti-SLAPP provisions. Florida also has a reasonably strong anti-SLAPP statute. Other states have none at all. So, this varies from state to state. Also, there is no federal anti-SLAPP statute. A successful anti-SLAPP defense shuts the underlying defamation lawsuit down early in the case and may makes the plaintiff, in this case, the doctor, pay the other sides’ legal fees. Ouch.

If a doctor is considering a defamation case with questionable merits against a patient, and the doctor practices in a state with strong anti-SLAPP laws, the first question to ask your attorney is the likelihood of losing the case quickly and being forced to pay the other side’s legal fees. Being unprepared for such an unpleasant surprise would justifiably transfer your anger with the patient to your lawyer.

There are two things thing worse than being insulted online. Paying for your attorney’s education, only to lose a defamation case you may file. And getting burned with anti-SLAPP and having to pay the legal fees of the patient who just insulted you.

Finally, there are better, more predictable, and more cost-effective ways to manage being insulted online. Medical Justice is equipped to help you defend your online reputation. Use the tool below or visit our consultation page to schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD.

What do you think? Let us know your thoughts in the comments below.

[1] Fuchs et. al. V. Scripps Howard Broadcasting Company et. al.,170 Ohio App. 3d at 679, 868 N.E.2d 1024 (2006).

[2] Fowler v. Capital Cities/ABC, Inc., 2002 WL 31230802, at *6 (N.D. Tex. 2002) (unreported).

Learn how Medical Justice can protect you from medico-legal mayhem… 

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 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of 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.

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 eyes. This attorney is a seasoned veteran.  The series includes a number of 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 fully 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 with attorney licensed to practice in your state.

“Doctor, the pneumonia patient in cubicle 4 is trying to get up and leave!”

Now what?

Here’s another scenario: You do an EKG on a patient complaining of occasional dizziness and are shocked to see a serious arrhythmia. You tell him he needs to go to the ER, where your colleague, a cardiologist, will meet him. He refuses and heads to the front desk to sign out.

Now what?

The short answer in both situations is that a competent patient who knows the risks can leave Against Medical Advice (AMA) and that neither you nor a hospital will have liability for what comes next. Forcing unwanted care on the competent patient might actually constitute battery, but in medico-legal reality there are quite a few layers in that simple answer.

Let’s take a look at those.

1. Does the patient have the capacity to make the decision to leave AMA?

Legal capacity is the standing to engage in a particular undertaking or transaction.

For the purpose of an AMA discharge you can assume that an adult or emancipated minor will have this.

2. Is the patient competent to make the decision to leave AMA?

Capacity is the floor but competency is the ceiling.

A patient who has capacity is entitled to refuse medical care if he is also competent to make that decision. Determine the patient can reasonably make this decision. If the patient is not capable of making a reasonable decision, then a practitioner cannot ethically or legally allow a discharge that could result in harm.

Of course, disagreeing with what the doctor suggests is not inherently unreasonable to the point of demonstrating a lack of competence to make a decision to leave.

An assessment of the patient’s ability to be rational under the circumstances includes whether the patient can understand the nature of his condition and the risks and benefits of treatment versus the refusal of treatment

A patient who is intoxicated, suffers from a psychiatric disorder, or is simply very sick is not solely by virtue of that condition incompetent to make a decision about whether to accept care. The inebriation may be mild or the mental illness may be encapsulated. So while the patient is certain that he is Napoleon, he might be able to also understand the gravity of appendicitis.

These are case-by-case assessments in which your own standard is that of the reasonably prudent physician. If you can document objective rationality on the patient’s part as to their medical care then the competency standard is met.

However, a critical caveat is the treating doctor should not determine competency in truly questionable cases because of the obvious conflict of interest. If you are really uncertain, get a psych consult because, in any later action, you will be able to claim reasonable reliance on what the psychiatrist finds.

3. Was the patient properly informed of the consequences of leaving AMA?

Leaving AMA is the strongest expression of refusal of care. For that refusal to be one that you can legally and ethically sign off, it must be informed.

As with informed consent, the patient’s signature on a form is merely a memorialization of a process of informing that must itself be documented.

Informed refusal and informed consent are actually two sides of the same coin and so they use the same criteria: the discussion should be of the risks and benefits of stopping treatment.

How to document this discussion is a matter of varying opinion.

Some defense attorneys suggest merely saying “risks and benefits.” But from the plaintiff’s side, I believe this to be a strategy far more risky than beneficial. It limits you to claiming that you probably mentioned dizziness when you are later being sued by a patient-now-plaintiff who got dizzy and fell down the stairs and broke three vertebra and is, of course, now claiming that you never mentioned dizziness.

Since most injuries due to untreated conditions will occur through expected routes – horses rather than zebras – it’s best to specifically list the major points that you covered. Those will have been the most important ones. Do so within the statement that the risks discussed “included but (were) not limited to…”. It gives you room to maneuver in your testimony, particularly if you really do not remember what you said, but it locks you in on points that any reasonably prudent physician would have covered and any reasonably prudent patient would have wanted to know.

Take a look at a case from New Jersey:

The pregnant plaintiff experienced abdominal pain, vomiting and diarrhea. She came to the hospital and later miscarried. She then felt better and said that she wanted to go home to be with her family. She was told that she would have to sign out AMA and did so. However, she was not told that she had an elevated white count and a fever that indicated persistent infection. She eventually suffered a ruptured appendix with peritonitis. She sued arguing the doctors failed to disclose the material hazards of not staying in the hospital. While they had discussed issues related to the miscarriage, they had not discussed potential consequences of infection. The plaintiff’s ability to sue was upheld on appeal.

The next issue is documenting the patient’s understanding of what they were told.

Don’t use hospital-speak like “Patient verbalized understanding”.

It is a bizarre and off-putting way to say what you want an eventual jury of people to understand: that the patient said that he or she understood what you said.

It also leaves out the legally important point that the patient was actually asked if they had any questions. After all, “verbalizing understanding” could be just going “Uh, huh” as you talk but it would not satisfy the ethical or legal mandates that you are under.

Instead, consider writing “At the end of this discussion I asked Mr. Patient if he understood. He said that he did. I then asked if he had any questions or concerns that were not addressed. He said that he did not. He then stated that he still wanted to leave because (reason).”

This also takes you back to proof of competency – that you could have a substantive back and forth discussion with the patient and while you may not agree his decision was ideal, it was also not so unreasonable as to vitiate decisional competence.

If your hospital has an AMA template you can use it. But if it leaves out these issues then you should consider adding them by hand or by free-texting. 

4. Trying to prevent the AMA discharge

A physician’s duty of care requires him to act reasonably under the circumstances.

When confronted with a patient insistent on leaving despite what the doctor believes is a serious health matter an essential part of reasonable conduct is ascertaining why he wants to leave.

What may appear voluntary may actually reflect the fact that the patient is uninsured, fears losing his job, is the sole caretaker of a child or elder, or is simply terrified of finding out that he has a serious illness. Even the archetypal AMA patient – the young male substance abuser – inherently has the issue of that substance abuse, likely compounded by poverty.

It is absolutely not the standard of care that a doctor become a social worker who solves every patient’s issues. What is required – and should be documented: the doctor at least tried to ascertain the reason the patient was trying to leave and to offer alternatives if such are available.

The patient who leverages a threat to leave AMA into care to a level the doctor believes is dangerous is asking that doctor to violate his duty to act for the patient’s benefit.

The doctor who agrees to do so may actually be falling below the Standard of Care, thereby engaging in actionable professional negligence.

You will get no credit for being caring when you give an oral antibiotic to a patient whose pneumonia meets the criteria for inpatient treatment or give a prescription for warfarin to an alcoholic with a DVT who then gets drunk and falls and suffers an intracranial bleed.

What you will get is a Summons and Complaint, the opening of a case that you may lose.

In other words, if the situation is severe enough so that you cannot safely let the patient go do not consider reducing your own care to a substandard level. Instead, contact the Legal Department and have it dealt with as a situation in which AMA discharge cannot be permitted.

Before we proceed, a brief reminder: Medical Justice is equipped to help doctors address a bevy of medico-legal threats, including those propelled by patients who are determined to evade necessary care. Schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD, using the tool below – or by visiting our consultation page. With that said, we return to the article.

5. Dealing with a lack of cooperation by the patient

If the patient refuses to sign the AMA form this refusal should be documented (with time and date) and witnessed.

6. Advice and prescribing

You have an established physician-patient relationship with the patient who is leaving AMA and this is now being formally terminated through the AMA discharge.

Unlike the ending of such a relationship from a practice at the doctor’s behest, there is no requirement of a period of bridging care. In this case it is the patient who is terminating the relationship.

Your duty of care still requires you to advise the patient to be vigilant of symptoms that should bring him back to the hospital and provide a prescription for medication required for his stabilization.

That latter point is where hospitals often drop the medico-legal ball. Risk managers are aware that courts and medical boards look at prescribing as strong evidence of an ongoing physician-patient relationship so they advise that prescriptions not be given to patients leaving AMA. However, this makes no sense when we consider that when a patient is discharged with the doctor’s approval they are typically given needed prescriptions. Those do not create an ongoing relationship.

Given what is standard conduct at the time of discharge, treating the AMA patient differently would not sit well with a jury in a later case if the lack of medication caused a serious harm.

If you are not holding the patient against his will because his condition is so serious that he cannot be allowed to leave — then you are in a situation comparable to a standard discharge and should be prescribing equivalently. Typically this will be for medications like pain killers and antibiotics. Of course, if you would not be sanguine to prescribe a medication with serious side effects or that must be monitored to a patient you are discharging willingly then you should not be prescribing those to the AMA patient.

7. Liability

A properly executed AMA discharge fundamentally counters physician liability in several ways:

(i) Termination of the duty to treat

The duty to treat is one of the basic predicates of a medical malpractice claim. A properly executed AMA discharge terminates it.

This does not, of course, vitiate a claim of negligence as to the prior care or as to actually letting the patient leave but it can cut off claims that arise immediately after the AMA discharge.

For example, in a case from Georgia a woman was injured when she tried to assist her daughter who had fainted after signing out AMA. The court held there was no obligation for the ER doctor to provide a wheelchair or personnel assistance for the daughter once she had signed out AMA. So there was no obligation owed to the mother who had to help the daughter when she then fainted.

The facts of the case do suggest short-sightedness in terms of letting a woozy patient struggle out on her own. But a lawsuit based on the duty of care that existed until the AMA discharge but not beyond it could not be maintained.

This principle may seem at variance with the previous discussion of the fact that the AMA patient should be given needed prescriptions. But the two cases are different. Providing the prescriptions would a culmination of prior care during a then-extant physician-patient relationship. The wheelchair case would be the start of a new relationship after an AMA discharge.

(ii) Proof of patient negligence

That the patient’s leaving AMA was a full or partial cause of a medical harm they suffered can be raised as a bar to proceeding at all in a contributory negligence state and as an off-set of damages in a comparative negligence state.

(iii) Assumption of risk

This is an affirmative defense in some jurisdictions to offset a finding of liability.

In an AMA case, the defendant doctor/facility would assert that the patient who chose to leave AMA thereby voluntarily assumed the risk of their subsequent injury.

This defense has 3 elements in an AMA case:

The patient was aware of the dangerous health condition.

The patient understood this danger because it was properly explained to them

The patient, in leaving AMA, failed to exercise care to avoid the danger.

The critical point in establishing this defense is that the patient actually had to know the risk with enough specificity to be held to the decision they made to leave. For example, the Alabama Supreme Court found that just telling a patient “you could die” as a general statement without any clinical facts was not sufficient even though the patient then did later die after leaving AMA.

This issue again therefore emphasizes the necessity of documenting informed refusal of care with appropriate specificity.

8. Payment issues

It is a common belief that an insurer may refuse to pay for all care if the patient leaves AMA, leaving the patient with the full bill. They can’t.

Insurers did try this in the past but it has long since been adjudicated that it is not possible for them to avoid paying for care already delivered based on the circumstances of the discharge. In fact, a 2012 study of 526 patients who left AMA from University of Chicago hospitals found that the 18 payment refusals that then occurred were all due to administrative issues and clerical errors and none were based on the AMA discharge.

It is therefore inappropriate to try to convince a covered patient to stay by telling him that he will otherwise have to pay in full out-of-pocket and it is unwarranted to be concerned that your hospital will disfavor you if patients leave AMA on your watch because they won’t get paid.

In summary: AMA situations account for only a small percentage of hospital discharges but they do present disproportionate liability risks unless handled appropriately. The process should be well-documented and include evaluation of capacity and competency and a discussion of risks and benefits that the patient understands and acknowledges. Properly executed, an AMA discharge significantly limits liability exposure and also offers important defenses.

[Medical Justice notes: This vignette inspired heated debate. A patient has early appendicitis. He is uninsured. The patient is concerned about cost. He pulls out a peer-reviewed paper suggesting that some subset of these patients can be successfully treated with antibiotics alone. He wants to try this as an outpatient and promises to return for surgery if his condition worsens. He also agrees to assume the risk if the should develop complications or die. As a surgeon, you want to provide definitive care – namely surgery. This is the best approach. But, the patient is currently refusing that option, and he is competent. The patient is signing out AMA. In that scenario, the option is to provide no prescription for antibiotics – and just let him leave – or to provide a prescription, with the understanding that approach is suboptimal statistically, but, he individually might improve. My personal opinion is to inform on the 3 options, surgery, antibiotics alone with possible surgery if no improvement, and no care. Document the risks and benefits of each approach. Since antibiotics with potential later surgery is better than just letting him leave AMA, I would favor providing the prescription. But, you’d have to document that the patient was informed of the best option, was competent, and refused the best option. Further, that approach (providing antibiotics prescription) is better than the worst option; an option that is likely to be implemented if the patient does not get what he wants.

There is no perfect answer to this conundrum.]

Medical Justice provides free 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 free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

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 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of 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.

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 eyes. This attorney is a seasoned veteran.  The series includes a number of 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 fully 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 with attorney licensed to practice in your state.

“Doctor, there is a DEA agent at the front desk. He wants to speak with you.”

What now?

Under the Controlled Substances Act (21 U.S.C. §§ 801-971) and the regulations at 21 CFR 1300-1321 the DEA is not just authorized but mandated to monitor controlled substances. Its Diversion Control program is specifically addressed “to prevent, detect, and investigate the diversion of controlled pharmaceuticals and listed chemicals from legitimate sources” – in other words, from offices like yours – and so is empowered to perform an unannounced site inspection.

However, that does not mean that these visitors – more likely Diversion Investigators than actual agents – can have immediate unfettered access to your office. Knowing your own rights is the most effective way to avoid being pulled into a more serious problem.

To begin with, they need your consent to continue. They will present a Notice of Inspection of Controlled Premises (Form 82) and ask you to sign it, giving that consent. However, that form specifically notes that what is found may be used against you in civil or criminal proceedings and that you have the right to refuse.

If you refuse they must get an administrative inspection warrant. They will probably, just as in every Law and Order episode, voice that as a threat of an immediate and inevitable return – “If you don’t sign now we will come back with a warrant” – but the fact is that while a request for such a warrant will likely be granted that process will take days to weeks, allowing you to consult in detail with an attorney and to take the next protective steps that we will discuss below.

There is also a third option, a middle ground between making them more aggressive (because you refused) and just allowing them to plough through your records and question your staff without any preparation: Call your lawyer immediately and discuss whether this is the “right day” for them to inspect you. After all, you are a good citizen with nothing to hide and certainly intend to cooperate, but you have patients and this will be disruptive of their care and of staff availability.

Put the lawyer on the phone with the inspector. He or she will be able to establish that you absolutely respect the importance of their mission to prevent drug diversion but that you cannot simply close down immediately to permit the inspection to go forward at that specific time. The attorney will probably also be able to get a sense of whether this is a random inspection or whether a complaint was made, which will allow them to advise you better. If you cannot reach your lawyer you can try to reschedule on your own.

If your lawyer / you are not able to agree with the DEA on a mutually convenient day then you should, unless specifically instructed by your lawyer to consent, refuse and wait for the warrant so that you will now have time to confer with your lawyer and perhaps even arrange to have counsel present at the inspection.

When the actual inspection occurs it cannot be a fishing expedition. In that regard, there are two important limitations to bear in mind:

(i) The DEA is only authorized to “inspect, copy, and verify the correctness of records required to be kept.” What this means is that it is allowed to look at your records on controlled substances to determine if they comply with the regulations that you are under as a practitioner who prescribes such and whether there is evidence of diversion – and that’s it.

(ii) While there will necessarily be conversation between you and your staff and the inspector, DEA inspectors are not permitted to interrogate.

Both of these are very good reasons to prepare, to set up the proper person to deal with the inspector (most likely you or your office manager) and to make sure that that person will keep the inspection on its limited track and engage only in communication that is courteous but kept to a bare minimum.

The inspector may, at the end of the inspection, present a Voluntary Surrender of Controlled Substances Privileges (Form 104) under which you would give up your registration to avoid the DEA proceeding further. Since this form becomes effective as soon as a DEA employee receives it, signing it would immediately trigger loss of the ability to prescribe controlled substances, potential disciplinary action by the state medical board and a potential loss of credentials. Since it generally takes 18 months to 2 years to reacquire registration – if at all, since the DEA will oppose this with an Order To Show Cause – signing this under the stress of the inspection because you think that you are thereby ending the problem is something that you definitely should not do on your own. The ramifications are serious and this is a matter you want to discuss with counsel.

If your lawyer is not present at the inspection then as soon as the inspector leaves write a memo for him or her describing everything that was said and done during the inspection. This will be fully privileged as an attorney-client communication so be honest. If your attorney needs guidance from a compliance expert they should hire that individual themselves so that any communications with them will be shielded as work product. Before we continue, a brief reminder: Medical Justice is equipped to help doctors address a bevy of medico-legal threats – including unexpected visits from the DEA. Use the tool below to schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD. With that said, the article continues below.

If the inspection turns up a problem and a voluntary surrender was either not deemed warranted or was refused then the matter moves to the next phase, which can, depending on the severity of the infraction and any history of prior misconduct, range up to a criminal investigation by actual DEA Special Agents or by the U.S. Attorney’s Office.

Most deficiencies, though, will only trigger administrative remedies…but “only” is a relative term because administrative proceedings can still have a significant impact on a practice by restricting the ability to prescribe and can begin a penumbra of events including disciplinary actions and a loss of credentials. They should not be taken lightly.

The lowest level of sanction is a private (i.e.; between the DEA and you) Letter of Admonition (LOA). This is a warning on the record. You are not required to report it but it will be taken into account by the DEA should there be future violations.

The next level is a private Memorandum of Agreement (MOA) negotiated by your attorney and the DEA under which you agree to undertake measures for a limited time to address the specific deficiencies that were found and also agree to be re-inspected without a warrant but “within reason and so as not to unduly disrupt the practice.” The caveat, though, is that even after an MOA expires it will, like an LOA, be a basis to enhance sanctions if there is a future violation. The critical issue for you in agreeing to an MOA is that it be narrowly tailored so as to not unduly disrupt your practice or your ability to remain credentialed at your hospital or group.

If greater administrative sanctions are deemed warranted the next step is for the DEA to issue an Order To Show Cause why your registration should not be revoked or suspended. The case will then be heard by a U.S. Administrative Law Judge who will determine if letting you continue to prescribe controlled substances is “inconsistent with the public interest.” The ALJ will not personally act on your registration but will issue a Recommended Opinion that will be forwarded to the DEA Administrator. A critical point here is that that Opinion is not binding and so the Administrator may accept it or reject it or modify it, including more harshly. The results are then published on the DEA website under “Diversion Control and Prescription Drugs/Cases Against Doctors.”

The best prevention of any of these outcomes is, of course, compliance. There is a Compliance Manual on the DEA website and it should be referred to when there is a question. The office should also, as it does for HIPAA, have an assigned Compliance Officer on controlled substances prescribing and that person should also be the designated contact in an inspection.

In summary: A site inspection by the DEA is going to be a very upsetting event and so it is essential to understand the limited authorization of the inspector, the rights of the doctor and the steps in the process and to act only after due consideration and on advice of counsel.

Medical Justice provides free 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 free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

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 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of 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.

We continue our two-part discussion with Kathy Leodler (former FBI) and Paul Leodler (former police sergeant) of the Rampart Group. Miss part one? Don’t miss out. Listen to it here.

Concealed weapons in the medical practice – where to begin? Is it possible to balance the protection firearms provide with the risks they create? And how should doctors react when a patient (or employee) with a history of extreme behavior (and a sizeable gun collection) threatens violence – or suicide? Most patient interactions are conflict free. But not all of them. Some can be deadly. And if it is predictable, it’s often preventable.

Use the liner notes below to quickly navigate to the topics that interest you the most.

0:00 – 7:25: How should doctors address concealed weapons in the office? How can doctors use concealed weapons to protect their practice from threats?

7:25 – 11:15: What must doctors understand before arming themselves in the medical practice?

11:15 – 19:40: A patient with a history of violence has threatened the practice. What now?

19:40 – 22:45: The value of expert security counsel cannot be overstated. How can doctors qualify such counsel? 

22:45 – 31:30: A patient has become violent. He’s called your practice and made credible threats. He may also be suicidal. What now?

31:30 – 43:30: How to de-escalate conflicts with an ex-employee following their termination.

43:30 – END: Closing remarks from Dr. Segal and the Rampart Group…

RAMPART GROUP, LLC.

Office: 800.421.0614

email: kathy.l@rampartgroup.com

www.RampartGroup.com

KATHY LEODLER is founder and CEO of Rampart Group LLC, Seattle,
Washington, a security consulting and investigations company founded in 2011.
Before establishing the Rampart Group, Ms. Leodler had a distinguished 23
year Federal law enforcement career as an FBI Special Agent and Acting
Special Agent in Charge of one of the FBI’s top 12 field offices in San Diego,
CA. Post FBI retirement and prior to establishing the Rampart Group, Ms.
Leodler served as Chief Security Officer for a US based high net worth family;
Director of Security for a global medical technology company with offices on
five continents and in 120 countries; and as Director of Anti-Piracy investigations
for the Recording Industry Association of America-West Coast. In 2016
she served as a trainer with the US Department of Justice Fair and Impartial
Law Enforcement Program. In 2017 Ms. Leodler was named as a Director,
Timberland Bank Board of Director’s where she continues to serve.

Ms. Leodler’s combined law enforcement investigative experience, global
resource network and security expertise spanning over 34 years has also
gained her great respect and acknowledgment from numerous law firm clients
and corporate clients alike. Since the company’s formation, Ms. Leodler and
the Rampart team have assisted law firm clients in achieving approximately
$30 million in civil settlements in personal injury, sexual harassment, wrongful
death, wrongful termination, product liability, premise liability and medical
malpractice cases.

Ms. Leodler is often called upon by the TV news media to comment on
several significant security related topics such as school shootings, the dangers
of online dating, cyber identity protection and more. She is frequently invited
to speak at public events and business meetings. Ms. Leodler and her business
partner, Paul Leodler, have trained over 12,000 persons in active shooter
survival, bank robbery survival, pharmacy robbery survival, workplace violence
prevention, security awareness, crisis management, business continuity, implicit
bias prevention and workplace investigations.

Throughout her professional career, she has been a member of the Society of
Former FBI Special Agents; FBI Agents Association; International Security
Managers Association (ISMA); ASIS; US Department of State Overseas
Security Advisory Council (OSAC)-Bureau of Diplomatic Security; International
Association of Chiefs of Police (IACP); Washington Association of Legal Investigators
(WALI); Washington State Association for Justice (WSAJ) Associate
Member; Washington State Paralegals Association (WSPA); Oregon Association
of Licensed Investigators; Private Investigators of California Association; CA
Association of Hostage Negotiators (CAHN); Maritime Security Council; FBI
InfraGuard; Federal Law Enforcement Officers Association (FLEOA); Chamber
of Commerce; Worldwide Who’s Who, and Soroptimist International.

PAUL LEODLER is the Executive Vice President and Co-Owner of
Rampart Group LLC, and has over 40 years security and investigative
experience. He served 16 years in public law enforcement, first as a Deputy
Sheriff, Ascension Parish, Louisiana, and later as a Police Officer and
Sergeant with the Houston Police Department (HPD).

During his service in local law enforcement, Paul served in many roles
including tours in the HPD Internal Affairs Division where he conducted
police corruption investigations, and the Narcotics Division where he served
on a joint drug task force with the FBI charged with investigating international
drug trafficking and money laundering.

Paul’s private sector experience includes 9 years as Director of Global Security
with a Fortune 50 medical products and services company where he was
responsible for ensuring the security of all operations in the Western US, Latin
America, Middle East and Southeast Asia, a region employing approximately
12,000 people in pharmaceutical and medical products distribution centers,
medical device manufacturing plants, research and development facilities and
nuclear pharmacies that manufacture and distribute radiological medicines.
His role required development of policy and implementation of procedures
covering security related issues. He served as a resource for operations management
and was engaged in crisis response, workplace violence intervention
and business continuity planning. He inspected and audited facilities and
supply chains, performed critical incident analysis, conducted workplace and
criminal investigations and designed security systems for high risk operations.

Paul has extensive private sector security management experience in a variety
of roles. He has developed and led executive security details in the US and
abroad for celebrities, business executives and senior government officials and
has organized security for events in excess of 10,000 attendees in venues to
include Las Vegas, San Diego, Los Angeles, Denver, Seattle, Chicago, Orlando
and Washington DC. He is a widely recognized trainer and key note speaker
on the topics of Kidnap Avoidance, Robbery Survival, Workplace Violence,
Active Shooter Response and Workplace Investigations and has provided
security training for high net worth families, corporations, trade associations
and universities. He is a member of ASIS (American Society of Industrial
Security), US Dept. of State Overseas Security Advisory Council (OSAC),
Chamber of Commerce, And Washington Association of Legal Investigators
(WALI). He holds a BS in Criminal Justice from Louisiana State University.

Kathy and Paul Leodler run the Rampart Group, a security consulting and investigations company. Kathy Leodler is a former FBI agent who retired after a distinguished 23-year career. Paul Leodler served in local law enforcement for 16 years and has over 40 years security and investigative experience.

They have assisted many doctors. They’ve seen it all. Angry patients. Family members who are exploding – metaphorically. Employees who want the practice to know who’s the “real boss.” They understand security at the highest level – including security nuisances to crises specific to medical practices. Most patient interactions are conflict free – but not all. Some can be deadly. Preparation is key.

We have a lot to talk about – so much we have split our podcast into two episodes. This episode is dedicated to the first half-hour of our conversation. Stay tuned for Part II, to be released soon. What are we covering in Part II? We’ve give you a hint – concealed weapons in the medical practice. Don’t miss it. 

Use the liner notes below to quickly navigate to the topics that interest you the most.

0:00 – 4:00: Introducing Kathy, Paul, and the Rampart Group…

4:00 – 8:40: “Why should doctors think about security before there’s a dangerous crisis?”

8:40 – 14:40: “What is the one security exercise 99% of doctors never consider – but actually makes a huge difference?”

14:40 – 17:55: “How should doctors deal with patients who respect the doctor – but abuse staff members?”

17:55 – 22:45: “Why should doctors background check potential employees? What are the consequences of not doing background checks? What kind of vendors can doctors trust to perform these checks?”

22:45 – 27:10: Doctors want to avoid hiring employees with “money problems.” The reason: An employee with money problems may be tempted to embezzle money. How can doctors use credit checks to vet these candidates? And if an employee does embezzle money, what should doctors do?

27:10 – END: How can doctors use background checks to vet candidates for drug abuse?

RAMPART GROUP, LLC.

Office: 800.421.0614

email: kathy.l@rampartgroup.com

www.RampartGroup.com

KATHY LEODLER is founder and CEO of Rampart Group LLC, Seattle,
Washington, a security consulting and investigations company founded in 2011.
Before establishing the Rampart Group, Ms. Leodler had a distinguished 23
year Federal law enforcement career as an FBI Special Agent and Acting
Special Agent in Charge of one of the FBI’s top 12 field offices in San Diego,
CA. Post FBI retirement and prior to establishing the Rampart Group, Ms.
Leodler served as Chief Security Officer for a US based high net worth family;
Director of Security for a global medical technology company with offices on
five continents and in 120 countries; and as Director of Anti-Piracy investigations
for the Recording Industry Association of America-West Coast. In 2016
she served as a trainer with the US Department of Justice Fair and Impartial
Law Enforcement Program. In 2017 Ms. Leodler was named as a Director,
Timberland Bank Board of Director’s where she continues to serve.

Ms. Leodler’s combined law enforcement investigative experience, global
resource network and security expertise spanning over 34 years has also
gained her great respect and acknowledgment from numerous law firm clients
and corporate clients alike. Since the company’s formation, Ms. Leodler and
the Rampart team have assisted law firm clients in achieving approximately
$30 million in civil settlements in personal injury, sexual harassment, wrongful
death, wrongful termination, product liability, premise liability and medical
malpractice cases.

Ms. Leodler is often called upon by the TV news media to comment on
several significant security related topics such as school shootings, the dangers
of online dating, cyber identity protection and more. She is frequently invited
to speak at public events and business meetings. Ms. Leodler and her business
partner, Paul Leodler, have trained over 12,000 persons in active shooter
survival, bank robbery survival, pharmacy robbery survival, workplace violence
prevention, security awareness, crisis management, business continuity, implicit
bias prevention and workplace investigations.

Throughout her professional career, she has been a member of the Society of
Former FBI Special Agents; FBI Agents Association; International Security
Managers Association (ISMA); ASIS; US Department of State Overseas
Security Advisory Council (OSAC)-Bureau of Diplomatic Security; International
Association of Chiefs of Police (IACP); Washington Association of Legal Investigators
(WALI); Washington State Association for Justice (WSAJ) Associate
Member; Washington State Paralegals Association (WSPA); Oregon Association
of Licensed Investigators; Private Investigators of California Association; CA
Association of Hostage Negotiators (CAHN); Maritime Security Council; FBI
InfraGuard; Federal Law Enforcement Officers Association (FLEOA); Chamber
of Commerce; Worldwide Who’s Who, and Soroptimist International.

PAUL LEODLER is the Executive Vice President and Co-Owner of
Rampart Group LLC, and has over 40 years security and investigative
experience. He served 16 years in public law enforcement, first as a Deputy
Sheriff, Ascension Parish, Louisiana, and later as a Police Officer and
Sergeant with the Houston Police Department (HPD).

During his service in local law enforcement, Paul served in many roles
including tours in the HPD Internal Affairs Division where he conducted
police corruption investigations, and the Narcotics Division where he served
on a joint drug task force with the FBI charged with investigating international
drug trafficking and money laundering.

Paul’s private sector experience includes 9 years as Director of Global Security
with a Fortune 50 medical products and services company where he was
responsible for ensuring the security of all operations in the Western US, Latin
America, Middle East and Southeast Asia, a region employing approximately
12,000 people in pharmaceutical and medical products distribution centers,
medical device manufacturing plants, research and development facilities and
nuclear pharmacies that manufacture and distribute radiological medicines.
His role required development of policy and implementation of procedures
covering security related issues. He served as a resource for operations management
and was engaged in crisis response, workplace violence intervention
and business continuity planning. He inspected and audited facilities and
supply chains, performed critical incident analysis, conducted workplace and
criminal investigations and designed security systems for high risk operations.

Paul has extensive private sector security management experience in a variety
of roles. He has developed and led executive security details in the US and
abroad for celebrities, business executives and senior government officials and
has organized security for events in excess of 10,000 attendees in venues to
include Las Vegas, San Diego, Los Angeles, Denver, Seattle, Chicago, Orlando
and Washington DC. He is a widely recognized trainer and key note speaker
on the topics of Kidnap Avoidance, Robbery Survival, Workplace Violence,
Active Shooter Response and Workplace Investigations and has provided
security training for high net worth families, corporations, trade associations
and universities. He is a member of ASIS (American Society of Industrial
Security), US Dept. of State Overseas Security Advisory Council (OSAC),
Chamber of Commerce, And Washington Association of Legal Investigators
(WALI). He holds a BS in Criminal Justice from Louisiana State University.

You know what’s a bummer? Getting sued for med mal.

You know what’s a double bummer? Having your carrier deny the claim.

Getting a claim covered seems simple enough. Most doctors have “claims-made” policies. That means you need coverage from the date of the medical event which triggered the claim through the date the claim is made. Normally, that date is when you receive a “love letter” from an attorney demanding money. Or a letter stating they intend to sue you. Or you are sued.

There’s another obscure clause buried deep in many policies which ALSO mandates that the claim must be reported as soon as practicable, but no later than the end of the policy period. The end of the policy period is the anniversary date of your policy. The renewal date. When the clock resets.

Let’s make it real.

Assume you make your annual premium payments each year without delay. Off to a good start. In this example, your policy runs from January 1st to December 31st. Note, many policies do NOT use the calendar year for its length of coverage. The anniversary date may cycle with when you started your practice, or when the group started its practice, but not always. It’s a date you should know and keep handy.

Now, you perform a surgery on a patient July 1st. It goes reasonably well, and the patient is lost to follow-up after sutures are removed.

Unbeknownst to you, a lawyer requests medical records on September 1st. Your office sends the records.

Your office receives and accepts a summons for lawsuit on December 21st when you are on your annual two-week vacation.

This lovely piece of paper greets you on your return. Welcome back. You notify your carrier about the claim.

It denies the claim arguing that you reported the claim in the NEW policy year. Too late. Claim is denied. Your carrier reminds you that you pay from January 1st to December 31st. Even though you have prepaid for the next year, the claim was reported in the new policy period.

Based on these facts, you may eventually prevail in getting the carrier to pay for your defense and any settlement or judgment. You were, of course, out of town. And you DID notify the carrier as soon as practicable. You’re not Nostradamus. Whether or not the carrier will pay the bills will depend on the carrier’s reputation and track record, how the law vis a vis policy language in your state is interpreted, and the facts of your case.

Let’s add one more wrinkle to this example.

When the lawyer requested records on September 1st, assume it included language:

“Please be advised I represent Mr. John Doe in his healthcare liability claim under Chapter blah blah of State Civil Practices and Remedies Code for injuries and damages sustained under your care. Enclosed is authorization to send me copy of the full medical record. And so on.”

Note, there was no demand for money at this point. Just a request for records and a hint that a demand for money will be forthcoming based on the records.
Now the carrier has a better argument that you did not timely report a potential claim that has been marinating for four months.

The argument against paying for your defense just tilted in favor of the carrier.

Rut Ro.

The simple take-home points are these:

(a) Understand if you have an occurrence or claims-made policy.
(b) Know when your policy renews.
(c) Make sure you report any claim to the carrier ASAP.
(d) Do not delay reporting beyond the anniversary date
(e) Understand the definition of a claim that needs to be reported. It varies from policy to policy and carrier to carrier.

Finally, and most importantly, use a broker who understands this space and can go to bat for you as an advocate. They will go over the details of your policy in person or on the phone. They will educate you. They do not want a carrier denying a claim due to delayed reporting. We can provide names of brokers we consider cream of the crop. They can also go over your current coverage to see if you are overpaying. Or there are coverage gaps. Full disclosure, we are not paid anything by these individuals to sing their praises. They just do good work. Write to us at infonews@medicaljustice.com.com for details. 

Learn how Medical Justice can protect you from medico-legal mayhem… 

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. With over 50 combined years of 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.