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Recommendations For Physicians Who Receive Notice of Investigation From the ABIM

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In 2010, the American Board of Internal Medicine (ABIM) sanctioned 139 physicians for seeking out and sharing board examination questions with a testing preparation company. For the physicians involved in that cheating scandal, disciplinary action taken by the ABIM included revocation of board certification or suspension of certification for one to five years, depending on the severity of the offense. The ABIM also reported these actions to state medical boards.  The ABIM routinely takes such actions against physicians, investigating any similar type of “misconduct” or “irregular behavior” which it comes across.

Recommendations to the individual physician (“Physician”)who finds himself or herself in receipt of a letter notifying of investigation or possible disciplinary action from the ABIM:

1. Retain the services of an experienced healthcare attorney who is familiar with such matters, immediately.  The American Health Lawyers Association or your state bar association are good sources.  Ask for a referral of a health lawyer who represents physicians.

2. Avoid e-mailing or discussing your situation on any listservs or blogs.  You do not know how many places such communications may wind up and your complete identity will be easily determinable.

3. Be completely candid with your attorney and reveal all facts, documents and prior communications that have occurred.  Your attorney cannot effectively represent you otherwise.

4. Do not let any deadlines go by without requesting, in writing, via a verifiable method (not e-mail) that you have requested a review, hearing, appeal or other due process rights.  “Verifiable” means sent by a method that can be tracked and receipt of which is documented (e.g., U.S. express mail with a return receipt requested, Federal Express, etc.).  It does not hurt to send by two or three different methods.

5. If there is documented proof that you have actually been involved in a compromise of the examination, sometimes it will be advisable to admit this to the committee, produce any mitigating factors, apologize and propose a less harsh sanction (note:  this will be contrary to what most defense attorneys would ordinarily recommend.)  In the face of convincing evidence that you breached the rules, this may be the most reasonable and least damaging course to pursue.  Discuss this with an experienced health care attorney first, though.

6. Review any employment contracts, independent contractor agreements, provider agreements with third-party payers and medical staff bylaws (for hospitals at which you have privilege) with your attorney to determine if you are required to report this event.

7. Advise your employer (or prospective employer) of the situation and offer to do whatever is required to help alleviate any problems this causes to your employer.

8. See if your employer (or prospective employer) would be amenable to negotiating an amendment to the terms of your employment, including different duties, more supervisory, administrative or managerial duties, lower salary, etc., if necessary.  Also consider requesting a postponement of starting date, leave of absence, sabbatical or other alternatives to full-time employment.

9. Explore charitable work and community service opportunities, such as service in community health clinics, volunteering in free/charity clinics and hospices, volunteering for overseas medical organizations such as Physicians without Borders, service in medically under served areas, and similar opportunities.  This might also serve as a basis to convince ABIM to reduce the period for retaking the exam or becoming certified.

10. Every individual, every case and every situation is unique.  You should consult with your attorney on every issue and follow his or her advice.

Recommendations to the employer or prospective employer of a Physician who has received notice from ABIM that he or she will not be certified:

1. Consult your health care attorney regarding the matter immediately.

2. If your contract with the Physician requires him or her to be board certified (as almost any well-written contract will require) and it does not appear he or she will be able to meet this requirement, this will most likely be grounds to terminate or void the contract.

3. Attempt to obtain complete information from the Physician on what his or her exact circumstances are and whether or not he or she is likely to become certified in the near future.

4. The easiest and least expensive resolution may be to terminate the Physician’s contract, if the contract provides for this.  A voluntary agreement from both parties or voluntary resignation by the employee may be the least harmful way out.  The more complex and more expensive resolution may be to negotiate an amendment to the Physician’s contract and to try to find alternative duties for the Physician.

5. If it looks like you will be terminating or voiding the contract, start looking for a replacement physician right away.  (The law requires you to mitigate your damages.)

6. If you have a medical group, use group numbers to bill third-party payers, and the physician is a member of your group or is a participating physician on the panel of the payer, review your provider contracts to determine if you must report this or take action to avoid having the payers patients treated by the physician.

To read further on the cheating scandal in 2010, click here to read my prior blog.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in investigations and hearings of all types.  This includes board certification hearings, medical board hearings, Drug Enforcement Administration (DEA) hearings, Food and Drug Administration (FDA) hearings, medical staff peer review and clinical privileges hearings, FBI Investigations, DOJ Investigations, Drug Enforcement Administration (DEA) investigations, Medicare and Medicaid overpayment demands and hearings, and other types of investigations of health professionals and providers.  We also undertake civil litigation in the same types of cases.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.Copyright © 2017 The Health Law Firm. All rights reserved.

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Medical Students, Interns & Residents Beware: A Finding of “Irregular Behavior” Can Ruin Your Medical Career Before it Starts

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A medical student, intern or resident may receive a letter from the National Board of Medical Examiners (NBME), United States Medical Licensee Examination (USMLE) Secretariat advising them that they are suspected of “irregular behavior” on a Step examination. In the case of graduates of foreign medical schools, this will be a letter from the Educational Commission for Foreign Medical Graduates (ECFMG). Although “irregular behavior” is not the same thing as “cheating,” it is often thought of as the same by medical school officials and residency program directors.

A notice of irregular behavior may delay your entry into a residency program, your graduation from medical school and your potential job opportunities. Your examination scores will be held up while the matter is investigated until a Committee review or hearing can be held.

It is imperative that anyone accused of irregular behavior immediately consult with legal counsel experienced in such matters. At The Health Law Firm, we have represented a number of medical students, interns and residents in hearings on irregular behavior and we have consulted with many before on these matters.

Don’t Listen to Bad Advice.

The following are examples of erroneous advice we have heard was given to those accused of irregular behavior:

1. You shouldn’t have a lawyer represent you in such matters because this will make the Committee angry at you.

2. You don’t need a lawyer because you can just explain it yourself.

3. You just write a statement and explain it; the Committee will understand and find in your favor.

4. You do not need to request a hearing on it because if you submit documents, the Committee will review them, find in your favor and no hearing will be necessary.

5. If you request a hearing on the matter, you do not need to attend it in person.

6. If you request a hearing, an attorney is not allowed to represent you at the hearing.

7. You should not worry about the Committee finding against you because you can always appeal the finding or sue in court.

The above advice is wrong. The only advice you should listen to is the advice of an attorney who is experienced in handling matters of irregular behavior.

The Importance of Retaining Experienced Legal Defense.

The biggest problem faced by an individual accused of irregular behavior who does have a valid defense is to concisely and adequately explain the situation. Additionally, you must produce evidence that supports what you are saying.

Someone who is not trained in the legal profession and who is not familiar with such hearings will be unfamiliar with the process even though such hearings are not as formal as court hearings. Additionally, it is easy for a non-lawyer who is not familiar with the rules of the USMLE to fail to address those concerns and get side tracked on irrelevant matters.

Additionally, documents, statements, affidavits, expert witness reports and other documents presented to the Committee as evidence should be well organized, indexed, with a table of contents, pages numbered and summarized. This will better present an organized, easily understood defense. Sending in a few stray documents with no organization or explanation how the documents relate to the issues can be far less than effective.
Consequences of an Irregular Behavior Finding.

If a finding of irregular behavior is made against you, then this usually means that your best score is voided and you must retake it. The Committee may require you to wait a year or more to retake the examination. This can prevent you from obtaining or entering a residency program or it may delay you from graduating. Furthermore, the notation that you were found to have committed irregular behavior will be placed on your Step exam transcript. This will be reported out when your test scores are reported.

As indicated above, many medical decision makers view this as similar to cheating. It may disqualify you for many jobs or residency programs that you would otherwise be considered for.

If the time and money you have spent on your medical career is valued by you, you will act promptly to retain legal counsel experienced in USMLE hearings and procedures to represent you. You wouldn’t perform surgery on yourself. You shouldn’t attempt to represent yourself in such legal matters.

The takeaway message is that retaining an attorney to represent you against irregular behavior allegations could be the difference between a clear record and a mark that will follow you for the rest of your career. Don’t risk jeopardizing your future as a healthcare practitioner. Consult with an attorney as soon as you receive notice of allegations against you regarding irregular behavior.

To learn more on the repercussions of findings of irregular behavior, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced in Matters of Irregular Behavior Today.

The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in irregular behavior allegations, USMLE issues, academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., and Florida professional service corporation, since 1999, and is also a registered service mark. Copyright © 2017 The Health Law Firm. All rights reserved.

Texas Appeals Court Affirms$1.37 Million in Sanctions Against Doctor who Sued Hospital Former Employers

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 16, 2016, an appeals court in Texas affirmed a $1.37 million sanction against a doctor. The physician was ordered to pay the fine after the dismissal of a defamation lawsuit he filed against his former employers. The decision affirmed that the actions of his former employers, Baylor College of Medicine (Baylor) and Texas Children’s Hospital, did not cause the litigation fees which the court assessed to the doctor as sanctions.

The case had previously made its way up to the Texas Supreme Court, which makes the November 16, 2016, opinion the second time the Texas Fourteenth Court of Appeals has weighed in on the case. Additionally, it is the second time it has held the sanctions were merited for Dr. Rahul K. Nath.

The Back Story of the Case.

According to the opinion, Dr. Nath was employed by Baylor as a plastic surgeon and was affiliated with Texas Children’s Hospital. He was fired in 2004 and in February 2006 filed a lawsuit against his former supervisor at Baylor and Texas Children’s. According to court documents, Dr. Nath had accused his former supervisor of making defamatory statements about him after he stopped working. The alleged defamatory statements included that Dr. Nath had been fired, was unqualified and lacked professional ethics and integrity. (Note: We are just stating what was alleged in the lawsuit.)

To read the opinion in full, click here.

Were the Former Employers Responsible for the Accumulated Attorney and Litigation Fees?

The court was considering whether the behavior of Baylor or Texas Children’s was ultimately responsible for the fees accumulated litigation fees and expenses in the case. Previously, the trial court found that both Texas Children’s and Baylor’s actions had not caused the expenses for which Dr. Nath was sanctioned. The trial court wrote that the amount was appropriate as it was “far less” than the actual fees incurred by either party in defending Dr. Nath’s claims.

On appeal, Dr. Nath argued that the trial court hadn’t held a proper evidentiary inquiry, that it had based its sanctions award on “conclusory and self-serving” affidavits. Dr. Nath claimed that he was wrongly denied discovery in the case. To learn more about Dr. Nath’s challenge, click here.

Despite Dr. Nath’s arguments, the Fourteenth Court disagreed, holding that the trial court followed the exact instructions from the Supreme Court before deciding to impose the sanctions. Additionally, the court found that there was evidence in the record to support the conclusion that neither Texas Children’s nor Baylor’s conduct caused the expenses that were passed on to Dr. Nath as sanctions.

Adequate Supporting Evidence.

The first time the case came before the Fourteenth Court of Appeals, it affirmed the sanctions against Dr. Nath. The high court held that there was evidence to support the trial court’s finding of bad faith and improper purpose on Dr. Nath’s part with regard to certain filings in the case.

Dr. Nath appealed, and the Texas Supreme Court held that the trial court didn’t abuse its discretion in finding the doctor had exercised bad faith and improper purpose in certain filings. The high court remanded it back to the trial court to consider to what extent, if any, Texas Children’s and Baylor’s actions may have “caused the expenses for which recovery is sought.”

After a hearing, the trial court determined that neither employer’s behavior caused the expenses, and again imposed the sanctions against Nath. In appealing that ruling to the Fourteenth Court of Appeals, Dr. Nath argued that the trial court had made procedural errors in hearings and evidence submission in reaffirming the sanctions.

The trial court granted Texas Children’s and Baylor’s motions in June 2010, and also sanctioned Dr. Nath $726,000 for a portion of Texas Children’s fees in defending the suit and $644,500 for a portion of Baylor’s. The Fourteenth Court of Appeals affirmed that ruling, and Dr. Nath appealed to the state Supreme Court.
To learn more about defamatory statements and how to handle such claims, click here to read one of my prior blogs.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in Centers for Medicare and Medicaid Services (CMS) investigations, Medicare Audit defense, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Knaub, Kelly. “Texas Appeals Court Affirms Doc’s $1.3M Sanction.” Law360. (November 16, 2016). Web.

Knaub, Kelly. “Doc To Challenge $1.3M Sanction Before Texas High Court.” Law360. (January 15, 2014). Web.

“Texas Appeals Court Affirms Doc’s $1.3M Sanction.” LexisNexis. (November 16, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.