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Physicians as Targets: Insights, Hard Realities and How to Risk Manage Them.

On Behalf of | Mar 1, 2010 | Healthcare Law

Michael J. Schoppmann, Esq. Kern Augustine Conroy & Schoppmann, P.C.

In order to survive (and God willing, even possibly succeed) in today’s medicine, every physician must come to accept certain key insights and recognize certain hard realities.

Consider the case of Dr. A. B. – Dr. B., seeking privileges at a local hospital, obtained and completed the medical staff credentialing application. One of the questions, standard to all credentialing applications, asked if Dr. B. had ever been sued for medical malpractice. Dr. B answered that, yes, he had been sued twice, provided the requested details and filed the application. The hospital, as it is obligated to do, queried the National Practitioner Data Bank (“NPDB”) to verify Dr. B.’s background – including any malpractice actions. Unfortunately, the NPDB report included a third malpractice action. The hospital, upon learning of same, denied the doctor’s application for failing to report the third malpractice action and, as it is obligated to do, reported that denial as an adverse action to the NPDB and the state licensing board. The state licensing board investigated and eventually issued a reprimand (the least form of public punishment) for “inadequate medical record keeping” to Dr. B. The reprimand, as the law requires, was also reported to the NPDB. As Dr. B. was licensed in two other states, those state licensing boards also launched investigations of Dr. B’s reprimand. As Dr. B. no longer practiced in those states, and hoping to avoid the costs of legal representation and travel to those distant other states, he did not challenge those investigations and his license was eventually revoked in both states. As the law dictates, those revocations were also reported to the NPDB. As Dr. B. sought re-credentialing with his hospitals and health plans/managed care companies, investigations were initiated and as he began to be terminated from numerous health plans, he also began to suffer a significant loss of income. On the day that his final health plan terminated his contract, Dr. B. was notified that the third malpractice which he had failed to disclose – the very genesis for the destruction of his entire professional standing – was dismissed.

First insight: The number of agencies, entities and authorities who earn their living every day (and all day) regulating, auditing, monitoring disciplining, prosecuting and punishing physicians continues to grow every day.

Hard Reality: Any action, by any of these entities, will certainly be costly to defend, may well be career ending and may even place the physician’s liberty at stake.

Risk Management: Every physician must:

(1) Obtain the “ground rules” for every entity/agency under which they exist, operate and/or practice whether they originate from “private” entities such as hospitals (i.e., Bylaws, Policy and Procedure Manuals, etc.) or health plan/managed care company (i.e., policies and protocols, contract terms,

codes of conduct, etc.) or “public” agencies such as state licensing boards and/or federal oversight organizations.

(2) Review and analyze the “ground rules”,

(3) Decide if they can comply with these “ground rules”, and

(4) If they cannot comply with the “ground rules”, every physician should immediately end any role or responsibilities they hold under that entity/agency.

Anti-Physician Acronyms

Second Insight: All of the entities adverse to physicians have the ready ability, and in some cases the legal obligation, to communicate and coordinate with each other as to the action they are taking against a physician or practice.

Hard Reality: As a result, any application, investigation or action seemingly limited