Category: Malpractice Insurance

There are many states, as reported previously, that have ruled the doctor has no duty of care towards the patient and has a limited doctor-patient relationship. However, in actuality, those doctors, although not in a traditional role with patients, do have a role and legal and financial exposure. In many states, the courts have ruled that there is a doctor-patient relationship and in spite of the language written by the IME doctor that historically says, “The above captioned claimant is examined in accordance with the restrictive rules concerning an independent medical evaluation. Prior to the evaluation, it was explained to the examinee that this appointment was for the purpose of evaluation only and not for care, treatment or consultation, and therefore, no doctor-patient relationship would result,” it does not exonerate the doctor from his/her court-determined duty of care to the patient.  

1. Minimal to no coverage for examinations with duty of care 
2. Licensure issues 
3. Exposure to malpractice as a result of court rulings with no coverage issues…and all for relatively little in return for your assuming all of the risk vs. rewards (fees for IMEs and peer reviews.) 

1. Studin, M. (2012 April) IME & Peer Review Doctors: 2012 Malpractice Coverage Leaves You in Grave Peril, Part 1, The American Chiropractor, 34 (4): 30, 32, 34-35.
2. Mark Lambley v. Stuart Kamney, 43 Mass.App.Ct. 277, 682 N.E.2d 907 (Massachusetts 1997).
3. Kirschner v. Mills, 274 A.D.2d 786 (N.Y. A.D. 3rd Dept. 2000).
4. Reed v. Bojarsky, 764 A.2d 433 (New Jersey 2001).
5. Joseph v. District of Columbia Bd. of Medicine, 587 A.2d 1085 (D.C. 1991).

While it is a given that IMEs and peer review doctors have entered this business purely for money, many have gotten a “free ride” by being given liberties in the eyes of the law. While an “independent and peer review examination” comes in many forms, from pre-employment to record review or at the request of an insurer or other third party payer, courts, both at the state and federal levels, have a dichotomy in opinion. Either the courts feel that the doctor is responsible for his/her actions in the doctor-patient encounter, no matter how limited, or they do not. The legal status is called “duty of care” and it is incumbent upon every IME and peer review doctor to understand the relationship of this “limited doctor-patient relationship” to his/her duty of care, or lack thereof, and the grave pitfalls he/she faces as a result of that relationship. 

1. IME and peer review examinations have a limited doctor-patient relationship and no duty of care.
2. As a result, the courts have ruled that this does not fall under malpractice. Malpractice carriers have no obligation to cover you for non-malpractice issues.
3. Malpractice carriers will cover you for legal defense ranging from $0 – $25,000 per case.
4. Malpractice carriers cover $0 for awards or settlements against you.
5. Insurance companies and IME companies will cover $0.
6. You have to pay any excess legal fees and all awards or settlements against you. Personally, that can be millions.

At the very outset of this discussion, it is vitally important that doctors understand that the general “terms of acceptance” document that many practitioners have used in their offices for many years is not the kind of informed consent document that is becoming the standard obligation for DCs prior to starting care. A “terms of acceptance” is an educational document. It is important but not sufficient to address the permission dimension that defines informed consent. Informed consent activities are becoming increasingly specific. 

1. California Code of Regulations, Title 16, Div. 4, Article 2, Section 319.1
2. Hanumans v. Boyson, No. 2003AP1527, 2005 WL 1522624 (Wis. June 29, 2005).
3. Matthies v. Mastromonaco, 160 N.J. 26, 37, 733 A.2d 456, 462 (1999). 
4. Schreiber v. Physicians Insurance Company of Wisconsin, 223 Wis.2d 417, 588 N.W.2d 26 (1999).

:dropcap_open:I:dropcap_close:f you haven’t heard, Medicare is utilizing third parties, otherwise known as Recovery Audit Contractors (“RACs”), to identify services provided by doctors that do not meet the many documentation requirements now required by Medicare for reimbursement. For instance, we have seen patient’s visit denied based on lack of qualitative measures of patient improvement in plans of care or failure to identify a medical reason for a visit, both convictions leading to a determination of failure to provide medical necessity for care. Conveniently, RACs are reimbursed a percentage of the reimbursement recouped from the services they identify as unsubstantiated for Medicare reimbursement and, therefore, determinations of unsubstantiated care are rampant.

By all accounts, the Recovery Audit Contractor review process is not a fair process. Given a big enough haystack, you are bound to find some needles. Records are requested and, thereafter, dissected and recalibrated in ways that rattle the best of documenters. Of late, the results we have seen presented by our clients is that the RACs are looking to establish that the majority of chiropractic medically necessary visits submitted for reimbursement are, in fact, maintenance visits and, therefore, not reimbursable by Medicare.

You may be reading this and thinking that, if you are not the target of this type of audit as of yet, there is still time to take “preventative measures.”

True. However, the RAC is authorized to look back at your records for 3 years. And, as attorneys, we must inform you that any intentional alterations to medical records after the fact may be construed as fraudulent behavior. We’re serious. (Of course, this reference is not meant to stop you from amending a record appropriately, which would include adding a new entry that is signed and dated contemporaneously in an old visit.)

:quoteright_open:The RAC is authorized to look back at your records for 3 years.:quoteright_close:

What to do if you are contacted by a Medicare RAC:

First things first; if you are targeted by Medicare, do not panic. There are a number of defenses available to substantiate documentation practices; for instance, as the treating doctor you are, of course, in the best position to diagnose and treat the patient, which warrants a certain amount of deference from the get-go that is typically not acknowledged in an initial RAC review.

Secondly, be advised that the Medicare system has in place a number of appeals processes, of which we highly recommend availing yourself. It has been our experience that, in the majority of instances more favorable determinations have been levied during the appeals process than as a result of an initial review.

Finally, you should not go through this process alone. Experienced healthcare counsel should be retained at the start of the audit process to ensure your rights are protected and potential damages are mitigated. Typically, malpractice carriers cover the cost of legal defense work in RAC audits and the doctor does not incur additional expenses.

While the audit process may seem daunting, it is important to keep in perspective what the process is about. Every claim you send to Medicare is a bill to the federal government that every tax payor, yourself included, is responsible for. Not one of us has an expectation of going to a store and not being able to inspect what we are purchasing. So, it’s not unfathomable to understand Medicare’s perspective with the RAC audits—Medicare wants to know that the services for its beneficiaries that it is paying for are quality goods. However, Medicare has apparently adopted the mantra that the customer is always right and similar to Winona at Barney’s, Medicare no longer wants to pay for its goods. Bottom line, if no one calls security and the store detectors are turned off, Medicare is walking away with an arm load of goodies, which is why, if you are audited, it’s important to question any negative results and stand up for your right to be reimbursed for medically necessary services rendered. This may be easy to forget in the midst of an audit, but you, as the treating doctor, are the only person in charge of care, and you are entitled to reimbursement for all appropriately rendered and substantiated care.

Written by Jennifer Kirschenbaum, Esq. and Rachel Weinrib, Esq ([email protected]).

:dropcap_open:T:dropcap_close:he doctor of chiropractic in active practice has a lot to be concerned about and a host of issues and administrative and management steps that must be covered to make certain that all aspects of the practice are properly addressed on a timely basis. From taxes to your license to practice, these issues are demanding, and a frequent source of concern. If that weren’t enough, today’s increasingly complex and combative, if not outright hostile healthcare environment has seen a rapid evolution of a whole new array of potential exposures, quite apart from that old standard definition of “malpractice” where some in-practice accident or wrong decision results in physical injury to a patient. Today’s chiropractic professional liability insurance managers, if they are truly tuned in to the realities of today’s practice environment, have had to recognize the fast-paced dynamic of the threats and challenges DC’s in practice may face and respond with expanded and enhanced forms of coverage. This is one of my highest priorities.

Trends in malpractice continue to keep all health professions under serious pressure and, despite state efforts at limiting attorney’s fees, caps on damage awards, placing tighter limits on the timeframe for filing malpractice claims and other “tort reform” provisions, malpractice exposure is still the doctor of chiropractic’s greatest liability risk. This pressure is only going to expand with greater consumer access to health care and legal information through the Internet, growing consumer activism and a hungry legal profession willing to take on any claim, no matter how flimsy.

The chiropractic profession has the advantage of being one of the safest and most effective forms of health care, but we continue to be caught up in the greater malpractice environment in which the medical profession is very much on the defensive. This environment is stimulating a new wave of legal and consumer initiatives, with a “right to safety” becoming a new topic in public policy discussions on health care.

Activist consumer groups and attorneys are seeking to establish “judicial recognition” of a patient’s right to safety as a new element in the litigation mix. The aim of these activists is to seek to use this new “right” to stimulate greater caution and more effective injury prevention in hospitals and, ultimately, on the part of individual doctors. Because this sounds like a worthy cause, many politicians will likely be mobilized to promote it, and we will certainly hear more about these issues in the coming months. This is an environment in which you must have solid liability coverage that extends specifically to cover the new range of exposures the DC potentially may face. That range includes, but is not limited to, the following types of claims and charges:

• Board investigations and hearings
  :quoteright_open:I am not being the least bit alarmist or over-sensationalizing the new risks and exposures doctors are facing these days.:quoteright_close:
• HIPAA
• Insurance audits
• “Overutilization” charges
• Documentation issues
• Advertising issues
• Billing errors and omissions
• “Boundaries” and sexual misconduct charges
• Coverage for your corporate or partnership entity

I am not being the least bit alarmist or over-sensationalizing the new risks and exposures doctors are facing these days. HIPAA is real. Insurance audits and billing errors and omissions issues are a fact of modern day practice. Above all, in recent years, a new activism has emerged on the part of some state chiropractic boards in which actions against practitioners are being taken on the basis of questions of utilization and procedure that have never been a part of board scrutiny.

Today, perhaps in response to pressure from third-party payment agencies, or some misplaced desire to re-define the norms of chiropractic practice, some boards have acted against practitioners for “over utilization,” X-ray policies and very general communications with the public. These types of board actions clearly push the envelope into new territory and have many believing that such boards have grossly exceeded their authority. Still, unchecked by the courts or the state legislatures, such boards can lay de facto claim to new authority, and this means that you will need to be on your guard even more than in the past.

Real cases highlight the list of strange and completely unforeseen situations in which DC’s are finding themselves. In one state, a doctor was cited for misleading the public on the basis of the content of articles published in recognized journals posted or linked on his practice website. In another case, a DC was cited for overutilization for seeing a patient 12 times following a high-speed rear-end auto collision. Still another doctor was cited for failure to repay an insurance company for the care of a small child because no “series” of X-rays was taken, in spite of the fact that every safety and utilization guideline states that X-rays of children are to be avoided except in very specific situations, of which this was not one.

The source of this new wave of complaints is also of curious interest because almost none of these complaints dealing with practice norms come from consumers. Boards are taking the initiative themselves, responding to third-party payers and, sadly, other chiropractors, as the basis for their aggressive actions. The shaky ground that they are moving onto, however, has also prompted a number of lawsuits by the DC’s who are on the receiving end of such complaints, and those DC’s almost always win in the courts. The financial cost and distraction of such a suit is a very high price to pay, especially when in the eyes of most chiropractors and chiropractic organizations, the behavior cited as inappropriate is seen as well within the established norms of care.

As we consider the forces behind the new dynamic of professional liability, it is also important to look at the greater economic and regulatory, and even the political environment, since those factors are having a direct impact on professional liability challenges. The rules and regulations covering the delivery of and payment for health care services are becoming increasingly stringent and detailed and are being enforced by a highly driven bureaucracy with greater authority than ever before. The current economic crises in state and federal government programs is a strong motivator for more and more stringent enforcement, since managers of those programs have discovered that fines and re-payment of benefits is a major source of new revenue. Because the states and even the federal government are desperate for money, the pace and volume of enforcement and claims and charges against health care professionals are likely to greatly expand in the coming months. They are doing this because they see the potential for big money in fines and recoveries.

According to an October 10, 2011, US Department of Health and Human Services (HHS) press release, “In 2009 alone, more than a billion dollars in health care fraud monies have been recovered under the False Claims Act.” States are following suit and looking for every possible means to delay payments for covered services in their Medicaid programs, reduce payments or demand repayment sometimes on the flimsiest of premises. Private insurance is perhaps embracing the repayment or denial wave with the greatest gusto. Most DC’s have gotten the letters demanding repayment based on some new policy or finding. These are all situations where the doctors of chiropractic will be obliged to defend themselves and their care decisions against a whole new range of charges.

The federal government is massively beefing up its fraud and enforcement efforts. In May of 2009, the US Department of Justice (DOJ) and HHS announced the creation of the Health Care Fraud Prevention and Enforcement Action Team (HEAT) and the Obama Administration has announced that fraud prevention and enforcement is a “cabinet level” concern. In a similar vein, HHS has also established what they call their Senior Medicare Patrol (SMP) Program through tens of thousands of senior citizen volunteers who are being mobilized to supplement anti-fraud efforts. In these new efforts, money, its recovery or denying payments, is a top priority of policymakers. No one has said much about injured patients here.

All organizations and individuals in the chiropractic profession absolutely detest fraud and genuine abuse. I encourage any patient or provider who observes genuine fraud to report it immediately. What is alarming, however, is that, now, disputes over “medical necessity” are being thrown into the same category as billing for a service that was never delivered or some other outright criminal act. Here is how the CMS website defines “fraud & abuse”:

What Is Fraud & Abuse?

Fraud occurs when someone intentionally falsifies information or deceives Medicare. Abuse occurs when doctors or suppliers don’t follow good medical practices, resulting in unnecessarycosts to Medicare, improper payment, or services that aren’t medically necessary.

What this means is that someone’s opinion about “necessity,” if it happens to disagree with yours, places you in jeopardy like never before. This means that your clinical records will not only need to document your findings and the rationale for care for case management and reimbursement, but to defend yourself against a new wave of financially driven “necessity” claims. Here, as has always been the case, your patient records are your first and best line of defense. As well, sound chiropractic clinical guidelines are invaluable.

Doctors of chiropractic must be ever aware of the rapidly changing nature of the challenges they will be obliged to deal with in the months and years ahead. If they are smart, they will seek out the most comprehensive, proven and effective malpractice coverage they can find. Remember, it is not about “malpractice” in the old sense of an injured patient seeking redress for their pain and suffering anymore. Professional liability coverage must work to defend against charges that range from lapses in documentation, which some clever program manager might enhance into allegations of fraud, to complaints about your advertising to a state board. You need help and your malpractice company should be your most reliable ally in dealing with today’s new and unforeseen challenges.