Tag Archives: Medical Malpractice Defense

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Court rules hospital must disclose confidential physician credentialing records

The Illinois Supreme Court recently ruled that a physician’s application file and their data bank report information was subject to discovery in a plaintiff’s medical malpractice lawsuit alleging negligent credentialing. Hospitals have a duty to protect their patients against careless and incompetent physicians. Credentialing is the process through which a healthcare provider collects and verifies the professional qualification of a health care practitioner, including but not limited to relevant training, licensing, certification and registrations with health care regulatory boards and agencies. Negligent credentialing lawsuits involve the failure of a health care provider to meet its duty to conduct and maintain proper credentialing practices in connection with licensed health care professionals practicing within their health systems. In the event of a medical malpractice claim, the physician providing health care services might be negligent, but the health system might also be liable if they were negligent themselves, in the credentialing process.

Lawsuits arise out of medical malpractice claims where physician credentialing is at issue.

Credentialing of licensed health care professionals might take place at the direction or requirement by insurance companies, regulatory agencies, and health care administrations. It is common to re-credential a licensed physician following a medical malpractice claim; failure to verify a credential status following a claim for medical malpractice may expose the health care system to its own negligence and liability.

In the instant case, Klaine v. Southern Illinois Hospital Services (2016 IL 118217), the negligent credentialing medical malpractice lawsuit was filed against the physician and two hospitals where the physician was working. In the process of pre-trial discovery, the hospital responded to a discovery request from the plaintiff and responded with the production of approximately 2,000 pages of documents. Not included in the discovery response were two groups of documents, “which contained three of the physician’s applications submitted in 2009, 2010 and 2011 (Group Exhibit F) and “procedure summaries and case histories” (Group Exhibit J), arguing that they were privileged.[i]

Claims of privilege, in the discovery process, are asserted by hospital defendants but can be overruled by courts, and in this case, the physician’s application file and data bank report was deemed discoverable.

The hospital in this case, asserted that the withheld documents were not subject to the discovery process, arguing they were privileged pursuant to the Illinois Medical Studies Act[ii] (MSA) and the Health Care Professional Credentials Data Collection Act[iii] (Credentials Act).

The Illinois Supreme Court held that the information subject of the Credentials Act is confidential, but it is not privileged, for purposes of a medical malpractice negative credentialing lawsuit. Likewise, the court ruled against the defendant’s argument that the MSA precluded the discovery, noting that “confidential” is not the same as statutorily privileged. The physician’s applications, procedure summaries and case histories were ruled discoverable.

Information about physician’s history of practice and any reports of medical malpractice claims, settlements and regulatory decisions involving matters such as discipline, are maintained in the secure National Practitioner Data Bank (Data Bank). Over the hospital’s claims that the Data Bank information was privileged under the Health Care Quality Improvement Act[iv], the Illinois Supreme Court found the Data Bank information was discoverable and stated, “We believe it is clear that information reported to the NPDB, though confidential, is not privileged from discovery in stances where, as here, a lawsuit has been filed against the hospital and the hospital’s knowledge of information regarding the physician’s competence is at issue.[v]

Professional licensing and health care law and litigation attorney, Michael V. Favia asserts there are practices through which the hospital could have better insulated itself from exposure in this type of case.

Michael V. Favia states, “This case clearly set forth the unique intricacies of properly maintaining internal hospital records so that they are protected and not discoverable under various fact scenarios involving professional staff and/or internal risk management protocols.  Attorneys working in health law and in particular those handling hospital related matters should become very familiar with the details and judicial analysis of this case.”

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

[i] The National Law Review, Illinois Supreme Court Rules Physician’s Application File and Data Bank Report Information Discoverable in Negligent Credentialing Lawsuit, by Michael R. Callahan, Feb. 22, 2016.

[ii] 735 ILCS 5/8-2101.

[iii] 410 ILCS 517/1 et seq.

[iv] 42 USC § 11137(b)(1).

[v] See HNi above.

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Murder conviction: Doctor gets 30 years, patient drugs overprescribed

Image Source: LA Times, California doctor convicted of murder in overdose deaths of patients. http://lat.ms/1WnJRUF

Image Source: LA Times, California doctor convicted of murder in overdose deaths of patients. http://lat.ms/1WnJRUF

In a landmark legal decision earlier this month, the doctor convicted by a jury for second-degree murder of patients was sentenced to 30 years to life in prison.[i] The doctor allegedly overprescribed drugs to patients. In response to the landmark decision and murder conviction, the medical community may change the rules and protocols for managing patient prescriptions for narcotics. When administered properly, drugs are safe, but when mixed in the wrong combinations or taken in excessive doses, drugs are lethal. Like other licensed professionals, doctors are uniquely trusted by most people as lifesavers, often expected to perform miracles. It is contrary to the general standards of decency to which many of us are accustomed, to question whether a doctor would overprescribe drugs to a patient to the point of death.

The jury answered the question whether Los Angeles Dr. Hsiu-Ying (Lisa) killed her patients.

During the trial, jurors heard testimonial evidence from some family members of Lisa’s patients who called the doctor a “drug pusher” and asked her to stop prescribing medication.[ii] The prosecutor told jurors that Lisa’s routine of prescribing drugs was full of “red flags,” and despite receiving more than 12 reports from law enforcement or coroners saying, “Your patient has died,” Lisa did not change her prescription habits.[iii]

If Lisa knew that her patients were dying and the cause was connected with the drugs she was prescribing, the inference is that she did not care whether the patients were at risk of death. Why would a physician overprescribe drugs? In many cases where doctors are prescribing pain medications, those drugs find their way into the wrong hands when patients misrepresent their health history for the purpose of obtaining a prescription with the intent to sell the drugs. Was Lisa a “drug pusher?”

The prosecutor told the jury that Lisa, “agreed to give patients powerful narcotics without asking follow-up questions even after some – including an undercover agent posing as a patient – told her about their drug addictions. “She wrote them a prescription for the very thing they’re addicted to.[iv]”” Lisa’s attorney defended her client and argued that Lisa was not motivated by money. The countless reports of warning signs and questionable prescription practices are troublesome in the medical community where the good and ethical physicians get nervous about prescribing certain narcotics.

If doctors fear criminal liability for patient death connected with narcotics, fewer people with legitimate needs might find a path to recovery.

Medical malpractice insurance may pay the loss of life claim if a doctor is found liable for negligence, but the malpractice policy does not apply to criminal liability and it will not keep a doctor out of prison. Imagine a patient is manipulative and deceitful, and an unknowing doctor prescribes painkillers that the patient sells to others and someone dies. Is the doctor going to be criminally liable? Could there be an imposition of strict liability for deaths related to painkiller prescriptions? If physicians are to be held to a super hero standard where mistakes are not allowed, we might see lower enrollments in medical schools because the risks of the practice of medicine would dissuade our brightest scholars from becoming doctors.

The conviction and sentencing of a physician, in connection with prescribing drugs, is compelling, especially where very few doctors nationwide have faced similar charges, and the ones who do are often acquitted. It is likely that the medical community may respond with new advice and protocols to prevent future cases of abuse and death.

Michael V. Favia & Associates represent and defend doctors and their medical practice.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent licensed physicians in all types of litigation and administrative matters involving licensing and regulatory agencies. When a physician is accused, no matter in what form, of wrongdoing or negligence, it is imperative to manage the situation appropriately. In some instances, there is a duty to report, and when done correctly, the results are greatly improved.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

[i] Los Angeles Times, Doctor convicted of murder for patients’ drug overdose gets 30 years to life in prison, by Marisa Gerber, Feb. 5, 2016.

[ii] Los Angeles Times, California doctor convicted of murder in overdose deaths of patients, by Marisa Gerber, Lisa Girion and James Queally, Oct. 30, 2015.

[iii] See HNi above.

[iv] See HNii above.

Medical experts in court and evidence based medicine with Dr. James Harlan of INSPE Associates, Ltd.

INSPEThe Illinois Professional Licensing Consultants is a group of highly experienced attorneys and investigators who represent and defend licensed professionals. These featured attorneys, previously worked for the Illinois Department of Professional Regulation, and will represent and/or defend licensed professionals in cases involving the Illinois Department of Financial and Professional Regulation, Illinois Department of Public Aid and Illinois Department of Public Health. We also feature guests who work in business and professional fields who complement our efforts.

Click/tap here to listen to the podcast anytime on demand.

Topics and questions covered in this 30-minute podcast interview:

  • What does it take to be a medical expert?
  • What should attorneys be looking for in a medical expert?
  • Daubert vs Frye rulings: some states have different burdens to prove opinions for medical experts;
  • Evidence based medicine, what makes a good study beyond a mere claim;
  • About INSPE and what we do for the attorney and the expert.

James Harlan, MD, FACEPJames Harlan, MD, FACEP, received a BS in Biology/Chemistry from the University of Evansville and his MD from Michigan State University College of Human Medicine. He completed residency at the Resurrection Emergency Medicine Program in 2009 and has been practicing emergency medicine since. Currently, he practices at Northshore University Healthsystem. He joined INSPE in 2012 and is currently focused on the growth of the company. Recently, he has volunteered his time teaching emergency medicine residents and medical students. He has also given his time to ICEP for board review courses. His free time is spent with family.

Michael V. Favia & Associates are available to advise and represent physicians with a variety of legal issues. With offices conveniently located in the Chicago Loop, Northwest side and suburbs, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates’ professional licensing work, please visit www.IL-Licensing.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You may also connect with Attorney Michael V. Favia on LinkedIn.

Challenges for health care professionals reported in the National Practitioner Data Bank

The NPDB is a federal information repository dedicated to improving health care quality, promoting patient safety, and preventing fraud and abuse.

The NPDB is a federal information repository dedicated to improving health care quality, promoting patient safety, and preventing fraud and abuse.

The National Practitioner Data Bank (NPDB) is a federal information collection program, a part of the U.S. Department of Health and Human Services, designed to ensure health care consumers receive quality health care, patient safety, and are protected from fraud and abuse in the health care industry. This information kept and shared with authorized users includes negative health care professional disciplinary information, malpractice awards, loss of license or exclusion from participating in Medicare or Medicaid. The benefit of information sharing is measured in the efficiency in which the state agencies licensed to use the data bank can catch potential threats to the public, preventing health care professionals from having trouble in one state and leaving for another to start over with a clean slate. There are challenges however, when a health care professional is licensed in several states and there is an occurrence in one state and all the other states are notified, potentially triggering a chain reaction of inquiries among licensing and regulatory agencies.

Information collection and sharing is not new, but it is a more streamlined process today.

The United States Congress created the National Practitioner Data Bank with the intent to improve the quality of health care services while protecting the public from fraud and abuse. In 2010, when Congress voted to approve the Affordable Care Act, the NPDB was combined with the Healthcare Integrity and Protection Data Bank (HIPDB), which was originally established in 1996 in the Health Insurance Portability and Accountability Act (HIPAA). HIPDB was established to combat health care fraud and abuse, and served to collect and share information the way the NPDB does today.[i]

Reports to the National Practitioner Data Bank are “records of actions taken by authorized organizations regarding health care practitioners, entities, providers, and suppliers who do not meet professional standards.[ii]” An authorized report can include information concerning settlements and payment in medical malpractice cases in addition to negative action by health care organizations or state licensing boards in connection with the delivery of health care services, meaning a reprimand, loss of privileges, suspension, revocation and so forth. Medical malpractice reports are a concern of any licensed health care professional whose decision in whether to settle or continue defending against a complaint for medical malpractice due to concerns that paying a settlement will jeopardize the doctor’s status in the NPDB.

Licensure in multiple states can be a concern for health care professionals with reports on the NPDB.

If a health care professional settles a medical malpractice case, and they are licensed in multiple states, there could be state inquiries arising out of all the states in which the individual holds a medical license. It is possible that in the licensing agency, in the state where the medical malpractice case took place, is aware, investigates and elects not to discipline the health care professional. It is also possible that a neighboring state agency, also becoming aware of the malpractice cases through the NPDB, investigates and takes adverse action against the health care professional, such as suspending the individual’s license. That suspension could be the trigger for a domino-type effect in all the states in which a health care professional is licensed to practice their craft.

Health care professionals defend against claims and complaints to avoid reports on the NPDB.

Attorneys and consultants such as Michael V. Favia and the Illinois Professional Licensing Consultants work with health care professionals who face concerns about long-term impacts of actions that could damage their reputation and ability to earn income when reports are made to the NPBD. When negative information is reported through the NPDB, it can cost a health care professional significant time and money to protect their license to practice and make a living. Knowing the benefits and liabilities arising out of the NPDB is important, and health care professionals should be keenly aware of the NPDB and how it is used in the health care industry among the states.

Michael V. Favia & Associates offices are conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates professional licensing work, please visit www.IL-Licensing.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

 

[i] National Practitioner Data Bank website, HIPDB Archive.

[ii] National Practitioner Data Bank website, Reporting to the NPDB

Medical Malpractice Prosecution and Defense with Michael V. Favia, J.D.

An overview of the legal and factual issues involved in medical malpractice prosecution and defense.

An overview of the legal and factual issues involved in medical malpractice prosecution and defense.

The Illinois Professional Licensing Consultants is a group of highly experienced attorneys and investigators who represent and defend licensed professionals. The licensing consultants interviewed in this monthly program, previously worked for the Illinois Department of Professional Regulation, and will represent and/or defend licensed professionals in cases involving the Illinois Department of Financial and Professional Regulation, Illinois Department of Public Aid and Illinois Department of Public Health.

If you are outside the State of Illinois, the Illinois Professional Licensing Consultants have active of counsel relationships with a few major law firms, with offices in several states, so please reach out for assistance, even if you are not located in the State of Illinois.

Topics covered in this 30-minute podcast:

  • Introducing Michael V. Favia
  • How is medical malpractice unique compared to personal injuries or negligence?
  • What are some common events giving rise to a medical malpractice case?
  • What are the elements necessary to prove or defend a medical malpractice action?
  • How does an attorney litigate or resolve a medical malpractice claim, what is typical protocol?

CLICK HERE TO LISTEN TO THE PODCAST

Michael V. Favia is a former Asst. Illinois Attorney General and the Chief Prosecutor for the Illinois Dept. of Professional Regulation (IDPR), now known as the Illinois Dept. of Professional and Financial Regulation (IDFPR). Favia is the owner of a Professional Licensing Consulting Company where he and affiliated former prosecutors, investigators and professional licensing board members assist licensed professionals in their business, regulatory and IDFPR related matters.

Visit our Illinois Professional Licensing Consultants website for more information. You may also contact Michael V. Favia for more information by calling  (773) 631-4580 and by e-mail at favia@lawyer.com.