In case you missed this archived case report from Leentjens AFG, et al. Manipulation of mental competence: an ethical problem in case of electrical stimulation of the subthalamic nucleus for severe Parkinson’s disease. Ned Tijdschr Geneeskd. 2004 Jul 10;148(28):1394-8. Assuming you speak fluent Dutch.

A patient with severe Parkinson’s disease failed traditional treatments. He was bedridden, captive to a serious movement disorder. As a last resort, his physicians inserted electrodes in his subthalamic nuclei and initiated deep brain stimulation.

Three years later, he was admitted to a facility to address stimulation manic episode. This behavior did not respond to mood stabilization agents. He experienced “chaotic behavior, megalomania, serious financial debts, and mental incompetence.” The symptoms are not dissimilar to reports of hypomanic or even manic behavior from dopamine D2 and D3 agonists, such as ropinirole. From the American Journal of Psychiatry:

In clinical trials, the dopamine agonist ropinirole has produced hallucinations and confusion rated as mild. We provide evidence here that ropinirole may induce or exacerbate severe, acute psychosis in a patient without Parkinson’s disease. This case is not conclusive in part because of the use of quetiapine. However, the rapidity and degree of improvement weigh in favor of a strong role for ropinirole, and the likelihood of such an effect with this medication stands to reason. Given the recognized relationship of dopaminergic function to psychosis, best known through the strong antipsychotic effects of dopamine antagonists, such an effect of exacerbating psychosis by a dopamine agonist seems almost predictable. We suggest that ropinirole, like all other dopaminergic agents, be used with caution in psychotic patients and those vulnerable to psychosis.

In managing dopamine agonist psychosis or mania, changing the dose of the medication may mitigate the effects. Adding an anti-psychotic agent may also soften the suboptimal outcome.

In the case report, there was no therapeutic margin between the two states – (a) alleviation of Parkinson’s symptoms but associated with mania and/or psychosis, versus (b) normophoric state with return of capacity of judgment and insight, but with significant exacerbation of motor symptoms, leaving him bedridden.

The question was which of these two states was preferable. To the patient, there was no middle ground.

The patient’s doctors concluded that only with the stimulator turned off was the patient competent to make an informed decision. Meaning, his doctors posed the question of preference with the stimulator off; in the normophoric, bedridden state.

The patient’s verdict –  he preferred to be admitted to a psychiatric ward in a chronic manic state. There, he’d have acceptable motor function and reasonable activities of daily living. He shunned the option of normal cognitive / mood function at the expense of being bedridden.

Mental competence and informed consent can be affected by our treatments. If treatment is clouding judgment, the patient as a participant in his decision-making should be afforded the opportunity to have that cloud lifted, even if his final decision is to let the cloud return.

The patient in this case lived in and was treated in the Netherlands. It’s possible that the process and outcome in the United States would have been different.

What do you think?

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. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 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.

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. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

You received a demand letter from an attorney criticizing your web site. He alleges that it was not accessible by disabled patients, in particular, those who were hearing impaired. He specifically pointed to your videos which showed people talking, but closed captioning was turned off. He alleges his client was discriminated against and could not make an informed decision whether or not to see you. He described your office as a place of public accommodation, arguing that you are subject to the provisions of the Americans with Disabilities Act, and its state equivalent.  

The amount he is demanding is 4 figures. Likely less than what it would cost to vindicate your name in court. This attorney knows the math. And to be fair, the closed captions setting on videos was set to “off.” You fixed that technical problem. Going forward the matter should be solved. 

You fear that if you agree to settle this case, he’ll cash the check, and then send demand letters for 25 other prospective clients. Meaning, he’ll interpret your reasonable business decision as a sign of weakness and pepper you with new threats. 

Well, you’d like to include a term in the settlement agreement that prevents this attorney, or anyone in his firm, from suing you for a similar matter down the road. More broadly, you don’t even want this attorney to solicit other such clients, advertising to anyone who may have been affected by your actions. 

Can you do that? 

No. I’ll explain why. Then recommend ways TO achieve reasonable protections. 

Most, if not all states, mandate against “No suit” provisions in their codes of legal ethics. I’ll illustrate with New York.  

The NY Bar published a summary in its Attorney Professionalism Forum. 

The answer to your question starts – and mainly ends – with New York Rule of Professional Conduct 5.6(a)(2). 

Rule 5.6(a)(2) states that “a lawyer shall not participate in offering or making . . . an agreement in which a restriction on a lawyer’s right to practice is part of the settlement of a client controversy” (emphasis added). As the italicized language indicates, the Rule’s prohibitions are “directed to lawyers on both sides of the restrictive agreement,” covering those who accept the limitation and those who demand it. [N.Y. City 1999-03 (1999)]. Comment [ABA Formal Op. 93-371 (1993)], while not formally part of the Rule, states succinctly, “Paragraph (a)(2) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.” The Rule has been included in New York’s ethics rules with almost identical wording for decades and appears in the ABA Model Rules and the rules in other states as well. 

The central purpose of Rule 5.6(a)(2) is simple: to avoid restricting a lawyer settling one case from representing future clients against the same defendant because such restrictions are considered to pose three problems: 

1. 1. They prevent the public from using the “lawyers who, by virtue of their background and experience, might be the very best available talent to represent those individuals,” and who can do it most efficiently.  
   2. They reward the plaintiff based not on the merits of his or her case but on the defendant’s desire and ability to “buy off” plaintiff’s counsel.  
   3. Demanding such a restriction can create a conflict for the plaintiff’s lawyer, who must weigh the client’s interest in settling a particular case against the lawyer’s own interest in securing future clients and work; this conflict is heightened if the lawyer already represents another plaintiff pursuing an action that would be affected by this restriction. 

This Rule has not gone without criticism. One commenter argued it was an anachronism, illogical and bad policy. S. Gillers, A Rule Without a Reason, 79 A.B.A. Journal 118 (Oct. 1993). What are some of the criticisms? 

1. 1. Lawyers are already allowed to tun down work for all sorts of reasons, including no reason at all. (With some caveats, doctors are also allowed to turn down prospective patients from their practices). 
   2. The concern that future plaintiffs will be denied access to legal recourse is without merit. There are plenty of attorneys who could argue the same case. Just as there likely are plenty of doctors who could take care of a patient not admitted into a specific practice.  
   3. All settlements already create some conflict of interest. If a plaintiff settles a case, they likely will receive less than they could have received at trial. Of course, there’s also a risk that the plaintiff will receive zero. Again, back to the medical analogy, a surgeon will be paid for surgery he performs. By using his medical judgment and recommending surgery he cannot sidestep the reality that he will be paid more handsomely if the patient chooses to have the surgery. A conflict of interest.  

   These criticisms have not gone without notice.  

   For example, the court in Feldman v. Minars, [230 A.D.2d 356, 359–61 (1st Dep’t 1997)] in what is probably best viewed as dicta, quoted Professor Gillers at length in concluding that “an agreement by counsel not to represent similar plaintiffs in similar actions against a contracting party is not against the public policy of the State of New York” (emphasis added) even if the Rule explicitly prohibits lawyers from entering into it. The actual holding of the case was that an agreement not to “encourage” (e.g., solicit) other plaintiffs to sue the defendants would be enforced even if an agreement not to represent other clients could not be enforced or could subject the lawyer to discipline. Much more recently, U.S. District Judge Furman was equally vocal in condemning the Rule and its rationale, though he also did so in dicta. [Ipsos-Insight, LLC v. Gessel, 21-CV-3992 (JMF), 2021 WL 2784634 at *7 (S.D.N.Y. July 2, 2021).]  

   In other words, in some jurisdictions, such agreements are legally enforceable, even if they raise disciplinary issues for the involved lawyers. Meaning, a deal is a deal.  

   See Lee v. Florida Dep’t of Ins., 586 So.2d 1185, 1188 (Fla. Dist. Ct. App. 1991); Feldman v. Minars, 230 A.D.2d 356, 658 N.Y.S.2d 614, 617 (App. Div. 1st Dep’t 1996) (holding agreement restricting a lawyer’s practice as part of a settlement was not against the State’s public policy). As a direct response to Feldman, the New York City Bar Association issued an opinion that, even if such an agreement is legally enforceable, a lawyer may not ethically enter into a settlement agreement that restricts her own or another lawyer’s ability to represent one or more clients. N.Y.C. Bar. Ass’n Formal Op. 1999-03. 

   In contrast, in other states, the term is considered against public policy, and its effect in a settlement agreement would not be enforceable. See, e.g., Cardillo v. Bloomfield 206 Corp., 411 N.J. Super. 

   574, 580 (App. Div. 2010); Jarvis v. Jarvis, 12 Kan. App. 2d 799, 802 (1988). 

   Clever workarounds are also breaches of legal professional ethics. For example, adding a term in the settlement agreement hiring that same plaintiff’s attorney for YOU will not work. There, the hiring would be done ostensibly to create a future conflict of interest, preventing this attorney from litigating adverse to you, his “new client.” 

   So, what can you do? 

   You can ask for reassurances, in writing, that as of the date of settlement, this attorney has not been engaged by similarly situated clients. You are not preventing some future action. But you are making an informed decision as to whether to settle today, based on the attorney’s representation.  

   If [the plaintiff’s attorney] is willing to answer that question and the answer is no, it likely would not be seen as a restriction on her right to practice to have her make such a statement as part of the settlement. See DeSantis v. Snap-On Tools Co., 2006 U.S. Dist. LEXIS 78362, *34 (D.N.J. Oct. 27, 2006) (similar statement made in class action settlement agreement did not restrict class counsel from deciding to represent clients adverse to defendant in the future). 

   The NY Bar also came to the same conclusion. 

   A lawyer refusing to agree to these restrictions should nonetheless be permitted to inform a defendant, as of the time of a settlement, whether and the extent to which the lawyer is aware of any other clients who have asked for representation on the subject matter. 

   Finally, it likely IS permissible to engage the plaintiff’s attorney down the road as YOUR attorney. But it cannot be part of the settlement agreement in play. It would need to be an entirely independent action well after the dust has settled.  

   In summary, a settling defendant cannot ethically mandate that the plaintiff’s attorney not sue him in the future. But, from a practical perspective, getting reassurance that there is not a bevy of suits waiting in the wings IS helpful information. And in cases where the underling triggering problem has been solved (in the example above, the website being fixed), the combination of reassurance and the problem being fixed should allow for reasonable REM sleep. 

   What do you think? 

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. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 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.

Doctors fill out new and renewal applications on a regular basis. Medical licensure. Hospital credentialing. Professional liability coverage. In-network membership for health insurance carriers. The list goes on and on.  

I have two active medical licenses. One renews every year. The other renews every other year.  

Page after page of questions. The applications cast a wide net.  

The only abridged application in my life is the renewal of my DEA license. Paradoxically, it’s the priciest.  

One question I’m asked over and over is this. Do I need to include this [you fill in the blank] on the application? 

Remember, most authorities have access to a number of databases allowing them to do an independent search. If you’ve been convicted of a crime, it will show up in some database. If you’ve been reported to the National Practitioner Data Bank, many organizations will be able to interrogate your past.  

My guiding advice is this. If you are on the fence with an answer, you should generally (but not always) overdisclose. That is, answer “yes” to the question. Then provide an explanation in your own words. In that sense, you will be playing offense. If you answer “no” to a question, you will be rolling the dice whether the organization finds out a different version of your answer. If there’s a disconnect between your answer and the database’s answer, you will be called to task. The organization will want to know why you ostensibly hid the “true” answer. 

A phrase that I recommend in your long-form response is this. In an effort to be fully transparent, I am answering “yes.” This is both an honest (subjective) and accurate (objective) answer. Here’s what happened.” 

You are answering in your own words. It is the only time you will have total control of a narrative. You may even want to vet the language with an attorney. Words matter.  

It’s possible you will be called in for an interview to more broadly explain “what happened.” 

It may even be a stressful interview. Odds are high that you will fare better with that approach rather than later receiving a letter which says they believe your answer was inaccurate.  

Recently, I spoke with a doctor who was almost 60 years old. He was applying for a medical license on the west coast. He answered “No” to whether he had ever been convicted of a crime. When he was 17 or 18, he had been convicted of petty theft. He could not even remember if he was considered an adult or not at the time of the record. (This actually does matter, because regulatory bodies generally are not allowed to ask questions related to events when the individual was a minor.) The license was granted, but there was a record that the physician failed to disclose a criminal event in an answer. This was published as part of the Board’s public hearings.  

Will this matter to the physician’s career? Probably not. The event at issue took place decades ago. Still, the next time a matter comes up before the Medical Board about this physician, the less likely they will be to grant him a pass.  

With all of this said, if the answer is truly “No” to a question, by all means answer “No.” You do not have to disclose a narrative to a question that was not asked. 

Finally, a word about mental health. 

Every state license application is different. In the past, some medical license applications asked probing questions going back, well, quite a way. The Americans with Disabilities Act mandates that license applications cannot probe about anything other than that which would affect your current ability to practice medicine. A typical question, from Massachusetts, asks: “Do you have a medical or physical condition that currently impairs your ability to practice medicine?” This is Kosher.  

An article published in 2018 looked at the various state medical license applications in 2018 and divided them into categories. (Jones, et al. Medical Licensure Questions About Mental Illness and Compliance with the Americans with Disabilities Act. J. American Academy Psychiatry and Law. 46:458-471, 2018.) 

The impetus for the analysis was a decision related to applications for the Louisiana State Bar: 

Clark v. Virginia Board of Bar Examiners was a pivotal early decision. It featured a challenge to a licensure question that asked: “Have you within the past five years been treated or counseled for any mental, emotional, or nervous disorders?” The plaintiff argued the question was overbroad and not an effective way to identify unfit applicants, citing the APA position against status questions. The court concluded the question was in fact overbroad, ineffective, and had a strong deterrent effect in keeping law students from seeking needed counseling, and the question was invalidated for violating the ADA. A number of other cases in both state and federal courts threw out broad questions. The DOJ’s battle against state bar ADA violations culminated in a Settlement Agreement with the Louisiana Supreme Court that invalidated such overly broad diagnosis and treatment questions. Questions identified as objectionable included: 

Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder? 
Do you currently have any condition or impairment (including, but not limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or condition) which in any way currently affects, or if untreated could affect, your ability to practice law in a competent and professional manner? 

In the words of the DOJ: 

The settlement agreement ensures the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession as required by the . . . [ADA]. It prohibits the court from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment. It also requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities. 

Overall, the Louisiana Supreme Court accepted the DOJ’s finding that a number of the Court’s practices were contrary to the ADA. It agreed to discontinue these practices and to follow the ADA as interpreted by the DOJ in the future when considering bar admission applications. In addition, the Court agreed to pay a total of $200,000 in compensation to seven individuals for actions alleged to be discriminatory. 

The Agreement was considered a major success for both the DOJ and for the disabled applicants protected from the Court’s previous actions that were contrary to the ADA. The Louisiana Settlement Agreement is not a binding precedent in jurisdictions other than Louisiana. 

Now back to state medical license applications. Please remember this article was published in 2018 and there may have been changes since. 

Members of the first group (7 licensing bodies: Connecticut, Hawaii, Michigan, New York, Pennsylvania, Rhode Island, and West Virginia) asked no mental health questions for licensure. 

Members of the second group (11 licensing bodies: Arizona, Delaware, Illinois, Iowa, Massachusetts, Nevada, New Jersey, Ohio, Tennessee, Washington, and Wisconsin) included questions about whether applicants are currently impaired by a psychiatric condition in their ability to exercise the skills and judgment of a medical professional. 

Members of the third group (22 licensing bodies: Alabama, Arkansas, California, Colorado, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Vermont, and Virginia, Wyoming, and the District of Columbia) also asked about impairment because of mental and/or physical disability by inserting a hypothetical determination in their questions. For example, Kansas asks, “Do you presently have any physical or mental problems or disabilities which could affect your ability to competently practice your particular branch of the healing arts or your particular specialty?” 

The other three groups arguably strayed into territory not allowed by the Americans with Disabilities Act: 

Members of the fourth group (15 licensing bodies: Alaska, Florida, Georgia, Maine, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oregon, South Dakota, Texas, Utah, and Wyoming) asked specifically about any past impairment from mental illness, including illness that may have occurred many years prior to the licensure application, ranging from the past five years to as far back as age 18 or even at any time in the applicant’s life. 

Members of the fifth group (9 licensing bodies: Alaska, Florida, Georgia, Kentucky, Missouri, North Dakota, Oregon, Utah, and Wyoming) asked about the history of hospitalization, commitment, and incompetence determination for mental illness. The time frame includes the last five years to as far back as age 18 or even at any time in the applicant’s life. 

Members of the sixth group (9 licensing bodies: Alabama, Alaska, Colorado, Mississippi, Missouri, Montana, South Carolina, South Dakota, and Texas) broadly inquired about diagnosis or treatment for psychiatric illness or other mental health conditions. For example, Colorado asks about a diagnosis of “bipolar disorder, severe major depression, schizophrenia or other major psychotic disorder, a neurological illness, or sleep disorder,” rather than on conduct as required by the Louisiana Settlement Agreement for law examiners. 

Importantly, the AMA and the American Psychological Association ask medical license boards not to ask applicants about a history of mental illness.  

And it goes on. 

There are related concerns about the requirements of many licensing bodies for residency training directors to include information about any psychiatric history of applicants in reference letters. 

Bill Goren, one of the country’s leading authorities on the ADA had this to say about the Federation State Medical Board policy on physician impairment. 

The FSMB policy is physicians who are impaired or who have any potential for impairment must be fixed and restored at all costs before they can practice. I have a real problem with this. It goes directly against the underlying principles of the ADA. Whether a person chooses to have their disability fixed or not is entirely up to them. The ADA is all about integrating people with disabilities into the mainstream environment, and NOT “fixing” their disabilities. It accomplishes its goal by forcing various entities to engage in reasonable accommodations/modifications for the person’s disability. As we know, the reasonable accommodation/modification obligations must be done unless there is an undue hardship (title I) or an undue burden or fundamental alteration (title II and title III). So, the ADA is very much about working with the individual as you find them. 

Of course, if a physician is a direct threat to patient safety, that does need attention. But whether or not a physician sought treatment for depression 15 years ago is none of the Board’s business.  

Back to the original question. How much to disclose? Other than questions related to mental illness (and I suggest you vet such questions with an attorney, particularly one who understands the ADA), you are generally better off over-disclosing if you are on the fence. And then providing an explanation, in your own words, again often with the assistance of an attorney. 

What do you think? 

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. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 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.

When paper charts were the norm, a common question was how long you are required to keep medical records. Paper charts took up space. The more records you had, the more file cabinets you needed. And if the records spilled over, you needed to place such documents in storage. That storage facility had to be secure. And you’d need reasonable access.

With digital records, the space requirement moved to digital. While hard disc space is seemingly unlimited, it isn’t. There’s a cost per GB. And, the larger the database, the slower access to individual records may be. Finally, unlike paper records, if you lose a hard disc, you may lose everything if backup was not performed or failed.

State law, regulation, or Board policy determine how long you must keep medical records.

Statute:
Arizona:

Ariz. Rev. Stat. § 12-2297. For physicians,
Adult patients 6 years after the last date of services from the provider.
Minor patients 6 years after the last date of services from the provider, or until patient reaches the age of 21 whichever is longer.

Regulation:
District of Columbia

D.C. Mun. Regs. tit. 17 § 4612
A licensed physician shall maintain a record for each patient that accurately reflects the evaluation and treatment of each patient. These records shall be kept for three (3) years after last seeing the patient, or three (3) years after a minor patient reaches eighteen (18) years of age.

Board of Medicine:
Oregon:

You are advised to keep patient records, including those of deceased patients, for a minimum of ten years after the patient’s last contact with the licensee.  If space permits, indefinitely retain records of all living patients.  This is not a Board requirement, but this guideline will help you meet the Oregon Statute of limitations.
Note, this appears more of a suggestion than a requirement.

Some states, like California, only speak of hospital retention of records, and not physician retention of records.

Cal. Code Regs. Tit. 22, § 70751 addresses health facilities.
Patient records including X-ray films or reproduction thereof shall be preserved safely for a minimum of seven years following discharge of the patient, except that the records of unemancipated minors shall be kept at least one year after such minor has reached the age of 18 years and, in any case, not less than seven years.

What’s in it for the doctor? Well, retention of records may actually protect YOU. If you are sued, you will need/want the medical records to defend your care.

And a case can be made for hanging on to records for at least ten years. That case was the 2019 Supreme Court ruling, Cochise Consultancy Inc. v. United States, ex rel. Hunt. The Cochise case dealt with the federal False Claims Act – which is triggered by filing false claims for reimbursement, for example, to Medicare and Medicaid. These false claims require knowledge – knowledge means “actual knowledge” or “deliberate ignorance.” Actual knowledge equates to intentional fraud. An example of deliberate ignorance or willful blindness (a lower standard) is coding all E/M visits as level 5 without verifying the visits meet those requirements.

The False Claims Act (FCA) can trigger civil and criminal penalties. Money and/or prison.

Getting into the weeds on the Cochise case:

The result of Cochise’s medical record retention law hinges on interpretation of the FCA statute of limitations/repose. Here’s how:

1. The private citizen in the case (Hunt) filed a qui tam (whistleblower) complaint against Cochise Consultancy. He filed the claim more than six years after the incident in question allegedly occurred, but less than three years after he notified a government official.
   
2. The government opted not to intervene in the case, leaving the litigation to Hunt.
3. Because of that, Cochise argued that only the 6-year statute of limitations applied. Hunt’s claim exceeded that 6-year statute of limitations, so if the court ruled in favor of Cochise, it would mean that the FCA violation claim was no longer valid.
4. The court disagreed with Cochise. They ruled that Hunt filed within three years of notifying a government official—even though the government didn’t intervene—and within 10 years of the alleged violation.
5. They also clarified that knowledge of a violation by a private citizen does not trigger the three-year statute of limitations. Therefore, Hunt’s claim against Cochise was valid.

So, if you ever need to defend against an allegation triggered by the False Claims Act, the ten-year period will rule.

Given how painless it is to maintain digital records, the general recommendation is to keep records for a minimum of 10 years or whatever your state law mandates, which is longer.

What do you think?

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. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 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.

There used to be a saying, “As California goes, so goes the nation.”

This may need to be updated to “As Colorado goes, so goes the nation.”

Colorado was the first state to legalize recreational marijuana. Now, 23 states plus D.C. are in that category.

The Colorado legislature proposed a bill that was signed into law and took effect July 1, 2019. It provides a separate path to resolve disputes between doctors and patients related to adverse events.

One of the long-term stumbling blocks to moving to closure is the National Practitioner Data Bank. If a carrier settles a written demand for payment for a physician, that payment is reportable to the Data Bank. It does not matter if the claim was for $1 or $1 million.

Doctors fight tooth and nail to avoid such a report.

There is at least one exception to such reporting. If there was never a written demand for payment, no reporting is required.

Enter the Colorado Candor Act.

The Act creates a process initiated by the doctor within 180 days of a perceived adverse event. The doctor provides written notice he wishes to enter into an open discussion under the Colorado Candor Act. That notice must include specific rights afforded to the patient and the nature of the communications and discussions under the Act.

The health care provider/facility that agrees to engage in an open discussion may:

• Investigate how the incident occurred and gather information regarding medical care.
• Disclose the results of the investigation to the patient.
• Communicate to the patient the steps that will take place to prevent future occurrences of the incident.

So far, so good.

As part of their assessment, healthcare providers and facilities can determine whether or not an offer of compensation is warranted.

If no offer of compensation is warranted, the provider or facility shall orally communicate that decision with the patient.

If the provider or facility determines that an offer of compensation is warranted, the provider or facility shall provide the patient with a written offer of compensation.

• If an offer is made and the patient is not represented by legal counsel, the provider or facility is required to:
  • Advise the patient of the patient’s right to seek legal counsel regarding the offer of compensation; and
  • Provide notice that the patient may be legally required to repay medical and other expenses that were paid by a third party, including private health insurance, Medicare, or Medicaid.
  • A healthcare provider/facility may require the patient, as a condition of an offer for compensation, to execute all documents and obtain any necessary court approval to resolve an adverse healthcare incident.

So, how is any of this beneficial to the physician who kicked off the process?

Read on.

To facilitate open communication under the Colorado Candor Act, discussions and offers of compensation under the Act are privileged and confidential.

• Open discussion communications and offers of compensation made under the statute:
  • Do not constitute an admission of liability;
  • Are privileged and confidential and shall not be disclosed; and
  • Are not admissible as evidence in any subsequent judicial, administrative, or arbitration proceeding arising directly out of the adverse health care incident.
• Communications, memoranda, work products, documents, and other materials that are otherwise subject to discovery and not prepared specifically for use in an open discussion are not confidential.
• The limitations on disclosure include disclosure during any discovery conducted as part of a subsequent adjudicatory proceeding arising directly out of the adverse health care incident, and a court or other adjudicatory body shall not compel a person who engages in an open discussion under the Act to disclose confidential communications or agreements made as part of the open discussion.
• The Act does not affect any other law, rule, or requirement with respect to confidentiality.

Because no payments are made as a result of a written complaint or claim demanding payment, incidents handled through the Candor process are not required to be reported to the National Practitioner Data Bank.

Further, the Colorado Candor Act notes that any such payment is NOT a payment resulting from

• A final judgment, settlement, or arbitration award against a health care professional or health care institution for medical malpractice for purposes of Colorado reporting requirement Section 13-64-303;
• A malpractice claim settled or in which judgment is rendered against a professional for purposes of reporting by malpractice insurance companies under Section 10-1-120, 10-1-121, 10-1-124, 10-1-125, or 10-1-125.5;
• A final judgment against, settlement entered into by, or arbitration award paid on behalf of an applicant for malpractice under section 24-34-110 (4)(h); or
• A judgment, administrative action, settlement, or arbitration award involving malpractice under Sections 12-29.5-104 (5)(a), 12-29.9-104 (5), 12-32-108.3 (2)(b)(III), 12-33-117 (1)(j), 12-35-129 (1)(q) OR (1)(r), 12-35.5-111 (1)(i), 12-36-118 (4)(b)(III), 12-37.3-114.5, 12-38-116.5 (3)(b)(II), 12-40-118 (1)(r) OR (1)(y), 12-40-127, 12-41-115 (1)(o), 12-41-120 (1)(a), 12-41-210 (1)(k), 12-41-215 (1)(a), 12-42.5-109 (1), or 12-43-224 (8).

There are details.

Patients can still file their own complaints to the Medical Board (which they could otherwise still do).

And states outside of Colorado may require notification of incidents where there is compensation under the Candor process for providers who are licensed in those states, including through the Interstate Medical Licensure Compact.

So, the Colorado Candor Act is a clever process that makes it easier to have a back-and-forth discussion with the patient and their attorney in a reasonably safe environment. If payment is made, reporting requirements are limited, given that payment was not made in response to demand in writing.

So, Colorado codified its interpretation of what is reportable to the federal National Practitioner Data Bank, in a way that ostensibly complies with the Data Bank’s own reporting regulations.

For recreational marijuana, there are state and federal regulations regarding the law. Colorado says it’s OK, within limits. Federal law says otherwise, though federal law exercises enforcement discretion, limiting its actions in Colorado to addressing trafficking.

Reporting to the National Practitioner Data Bank is a federal law. Will the federal Data Bank respect Colorado’s interpretation as to what it deems as reportable?  Probably. That means there could be fewer line items for Colorado physicians compared to other states.

Iowa and Utah have recently implemented their own Candor Acts. “As Colorado goes, so goes the nation.”

What do you think?

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. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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 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.