Can Hospital Chains Improve the Medical Industry? Interesting Article In The New Yorker

One of my favorite writers on health care is Atul Gawande, M.D. (author of "The Checklist Manifesto" which I highly recommend to all health care professionals and other professionals). He has a recent article in The New Yorker magazine that I highly recommend entitled "Big Med: Restaurant Chains Have Managed To Combine Quality Control, Cost Control and Innovation: Can health Care?"

Read this article when you have time and think about how you would apply it to your own practice or business. How do you deliver a range of medical or other professional services to people at a reasonable cost and with a consistent level of quality? Can the innovations in other industries be applied to health care?

Posted by Tracy Green, Green and Associates, Attorneys at Law
Email: tgreen@greenassoc.com
Phone: 213-233-2260

Los Angeles Physician Acquitted of Misdemeanor Criminal Charges

On Wednesday, June 12, 2013, Lance Everett Wyatt, M.D. was acquitted of six misdemeanor charges following a 10 week jury trial. Dr. Wyatt took the case to trial and prevailed on all counts so kudos to him in fighting these allegations. The jury found that there was no intentional secret recording of patients and returned "not guilty" verdicts on all six counts.   

The investigating agency was the Medical Board of California’s Operation Safe Medicine. The case was prosecuted by the Los Angeles City Attorney's Office. The investigation began in August 2011, the case was filed in August 2012 and it has taken another year to take the criminal case to trial and obtain acquittals.  

This case arose because there were allegations that on August 4, 2011, Dr. Wyatt made secret video recordings of two patients who were seeing the doctor for post-surgical care and were undressed. It is alleged that one of the patients discovered a camera in the office, fled with the camera and turned it over to the police.  The investigation in this case appears to have been one that was not thorough and relied heavily on the statements of this one patient. 

Dr. Wyatt, who testified at trial for 9 days, stated that one patient had consented to be recorded and that the camera turned on accidentally and inadvertently recorded the other patient but that it was a mistake and not intentional.  In addition, a medical expert witness provided testimony supporting Dr. Wyatt's examinations.  

The charges on which acquittals were obtained were: two counts of Penal Code (PC) 647(j)(3)(1)(the unlawful filming of another); two counts of PC 647 (j) (1) (unlawful viewing of another); one count of PC section 243.4(c) (sexual battery on a patient); and one count of PC 242 (unlawful use of force and violence -battery) on another.  This case appears to have been overcharged since the battery counts are unusual in alleging an improper touching and for  allegedly based on taking too long with an exam. 

The Medical Board should now do the right thing and terminate its investigation of Dr. Wyatt based on these allegations. However, since there is a different burden of proof in administrative hearings, the Medical Board has not reported how it will proceed.  For some reason, even more than two months later, the restriction on practice that was issued by the judge in the criminal case requiring Dr. Wyatt to have a third party present when examining, consulting, photographing or videotaping a patient is still in place according to the Medical Board. This should be modified or deemed to be not in place given the result in the criminal case. However, the Board can take administrative action on its own even after an acquittal given that there is a lower burden of proof. We will see how the Medical Board proceeds.

One of the difficult things about sexual allegations with physicians is that the Medical Board tends to assume the patients are telling the truth even if there are great inconsistencies or credibility issues and prefer the cases go to administrative hearing so an administrative law judge can make those determinations.  It seems this same approach was handled in the criminal case which is why the case went to trial on an apparently weak case. The jury took less than 5 hours to come back with not guilty verdicts after a 10 week trial.   

This type of case based on weak allegations is a clear reminder why we recommend that physicians someone else present during physical exams that involve disrobing and have that person mark the medical chart so the physical presence can be documented. Although it is an extra cost, it can pay for itself given that anyone can make a false allegation and then there is a "he said/she said" situation. We have represented numerous physicians who were falsely accused of improper physical contact or making inappropriate sexual comments that could have been resolved easily if there had been a medical assistant in the room the entire time.   

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced health care attorney at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. 

LA Times Article On "In Store Clinics Look To Be A Remedy For Healthcare Law Influx"

Gary Friedman/Los Angeles Times

In being a healthcare law lawyer, it is important to see ahead and get ahead of the curve. For years, I have been telling my physician clients about the trend for stores like Walmart to have in-store clinics and the need for clean, professional cash clinics. Especially with the large number of uninsureds or insureds with high deductibles - cash clinics for primary care issues like physicals, flu, etc. have a niche.

I have seen the trend in insureds going to a cash clinic in Los Angeles where they can see a physician or physician assistant or $50 for a routine matter because they do not want to pay a $20 copay on top of another $150 deductible.

Stores like Walmart, CVS and others were willing to open these clinics and know that they were going to make money on the ancillary services. With California's strict rules on the corporate practice of medicine, we have not seen many of these in store clinics. However, we see independent optometry practices at Target and Costco that comply with the prohibition on the corporate practice of medicine.

For those interested in the topic, the Los Angeles Times article "In Store Clinics Look To Be A Remedy For  Healthcare Law Influx" explores how these in-store clinics are looking to the fact that more people will be insured in the future. The article gives an example of a mother who took her son to a CVS clinic for a physical for sports for $49 because her son's insurance would not cover it until August and it would cost $150 at his physician's office. Look at what the big players are doing in healthcare when thinking about your own approach to your practice.

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Recent Success Story: Nursing Student With Recent DUI Given Unrestricted RN License After Appealing Denial Of License

Last summer we had a victory in an appeal of a denial of an RN application before the Board of Nursing. This cases are more common now since the Boards are much stricter on rejecting license applications if there is a prior conviction - especially one for driving under the influence.  

A summary of the facts and strategy will show how these cases are handled and can be guided to a successful result or "win."  Although this was a RN application, the process is similar to other types of licensees when they are denied licenses and appeals are filed.

Factual and Procedural Background Surrounding 
Appeal from Denial of a License. 

• In December 2010 while in an RN program, the nursing student was convicted of driving under the influence of alcohol and placed on 3 years probation. There were no other convictions or other alcohol or drug-related problems in his background.
• In September 2011, while still in his RN program, he filed an application to take NCLEX-RN. He did not have counsel and submitted his own letter regarding the DUI conviction. I often find that early representation by counsel helps create a better package and record of mitigation and rehabilitation. 
• In November 2011, the Board of Nursing asked for more information regarding the criminal conviction. The nursing student still did not have counsel and handled the response himself. While he did his best, it was not how we would have recommended proceeding.
• In December 2011, the Board of Nursing denied the application for licensure by examination based on the recent DUI conviction with a high blood alcohol content. At this point, we were hired and filed a timely Notice of Appeal. 
• We immediately began to work with our client and prepared a significant mitigation package that had a lot of different moving parts, letters, reports and documentation. We began negotiations with the Deputy Attorney General assigned to the case on behalf of the Board of Nursing. 
• It took four months to get the mitigation package completed that we wanted and it was submitted to the Board through the Deputy Attorney General. The typical settlement for this type of case is a provisional license that requires the licensee to be on probation once the NCLEX is passed, and those terms are negotiated. 
• Due to the strength of the mitigation package and work we did and had our client do, in May 2012 the Board of Nursing declined to pursue any discipline against the client and he was approved to take NCLEX and the case was transferred to the licensure department. 
• In July 2012, our client was notified that he had passed his NCLEX and became a licensed RN. 

This was a great win since it would have been very difficult for our client to get hired if he had been on probation. It would have cost him a great deal of money over three years in lost income while on probation and would have been a permanent mark on his record that would have hurt his career. We estimated there would have been more than $100,000 in lost income and saved expenses over 10 years. Every case is different and this client was willing to work hard and do all the things needed for us to make him shine before the Board. 

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced nurse attorney, license attorney, and board hearing attorney at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. 

Tracy Green Quoted In Sac Bee Article "Legislation Aims to Crack Down On Illegal Medical Spas"

Robert Kneshke/Shutterstock

Medical spas are the latest focus in California's legislature. Tracy Green was quoted extensively in an article in the Sacramento Bee entitled "Bill Aims to Crack Down on Illegal Medical Spas" by journalist Anika Anand.

Why is this such a big issue in California? First, California has some of the strictest laws prohibiting the "corporate practice of medicine" in the United States. In plain English this means that in Californa a business corporation which is not owned by a physician or is not a professional medical corporation (at least 51% owned by a physician) can NOT employ a physician or nurse to provide professional medical services. There are some exceptions for hospitals and HMOs.  Some states like Arizona and Nevada do not have these laws and allow non-physicians to own medical practices.

Second, this is about money. Dermatologists, plastic surgeons, and other physicians are seeing business people open "medical spas" offering Botox, Juviderm, laser hair removal and other "medical" treatments at a lower cost because they do not have a physician on site and are undercutting prices and taking their business. The ability to get patients to pay cash (no insurance reimbursement) for these cosmetic and anti-aging medical procedures is a big draw since our aging population is willing to pay for these procedures.

Third, people opening medical spas do not hire attorneys at the outset -- even for a couple of hours -- to make sure they are complying with state laws. There are so many medical businesses that do not comply with the laws that they fail to realize they are violating state laws and are committing felonies. Failure to understand the laws is not a defense to the unlicensed practice of medicine charge.

Fourth, this crackdown follows Medical Board hearings regarding the level of supervision of nurses who perform cosmetic procedures such as Botox injections and laser hair removal. There was a push for higher level of supervision for these procedures but that could adversely affect nurses' ability to perform procedures in hospitals and clinics that are not cosmetic related. The increased enforcement seems to be a result of those hearings.

Finally, the Medical Board seems to be using these criminal cases in order to deter others and send a message out to the medical community. If an individual hires a physician to be a medical director and a nurse to perform Botox or laser hair removal - it is a felony or misdemeanor of practicing medicine without a license. It is a Business and Profession Code violation and under the current laws no one need prove intent to defraud or criminal intent. The physician can be charged with aiding and abetting the unlicensed practice of medicine as well. This means it is easy for the government to shut down illegally structured medical spas, execute search warrants and charge the individuals involved. 

How many medical spas are in California? We do not know. Medical spas are not required to register with any official government agency, so there is no way to obtain an exact count. The legislature's concern is that a significant number of the "medical spas" are operating without proper medical supervision. California is currently proposing to strengthen its laws governing medical spas and in the meantime the Medical Board is initiating criminal investigations and cases against medical spas that are not legally compliant.

In my opinion, this crackdown and proposed legislation is unnecessarily detrimental. The maximum fine would be increased from $1,200 to $50,000 and the jail time would also be increased substantially. This would unfairly target those unfamiliar with the existing operating guidelines. There are more effective ways to ensure compliance with business regulations than criminalizing the conduct.  While I understand the importance of compliance and have worked in my own practice to help various spas achieve fully compliance, this new law would be overly harsh. For physicians and nurses, the criminal charges could adversely affect their licenses.

Extreme criminal charges are heavy-handed unless the case involves repeat offenders or people who have been told that this is the law. Rather than focusing so many resources on intensive investigation and prosecution, the state should be concentrated on making people aware of the proper way to operate these types of businesses.

For further reading on this matter, please refer directly to the Sacramento Bee article where I am quoted. In the meantime, the key word is get compliant as soon as possible and seek legal advice BEFORE you open your medical spa business. If you have already opened a medical spa or aesthetic medical practice, get compliant ASAP.

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced health care attorney and medical spa attorney at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  

Recent Nursing Trend: Nurses Going Back To College For 4-Year Degree To Meet New Requirements

The New York Times' article "More Stringent Requirements Send Nurses Back to School" (June 23, 2012) highlights more stringent requirements that hospitals and other employers are requiring of R.N.s in today's world. Hospitals which often pay the best, especially teaching hospitals, are beginning to require a 4-year degree for hiring. It is time to consider more education in order to stay competitive in the marketplace.

I have also been encouraging my nurse clients with 4-year degrees to consider becoming advanced practitioners such as Nurse Practitioners or Certified Nurse Midwifes since that gives them the ability to practice more independently under a physician's supervision. It makes practice in a private setting more rewarding as well.

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced nurse attorney, at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.