LEGAL ISSUES: Playing a Big Role in Health Care
This week's Legal Times looks at recent court cases and laws affecting medical privacy, Y2K compliance, professional courtesies, ERISA and assisted suicide.
- Legal Times reports that physicians who provide professional courtesies such as waiving co-payments for care provided to doctors could be vulnerable to lawsuits under the False Claims Act. Also, specialists who provide free care to other doctors who refer patients to them could be charged under the anti-kick-back clause of the Health Insurance Portability and Accountability Act. These discounts could also "trigger 'most favored nation' clauses" in many contracts that require "the contracting physician to bill the payer no more than the lowest rate charged to any patient." So far, no doctors have been prosecuted, but the American Medical Association has released guidelines urging doctors to be careful (Greeson, 3/22 issue).
- Legal Times warns that "if a Y2K glitch causes harm to a patient, it is likely that hospitals, physicians, device manufacturers, software suppliers and insurers all will be sued and implicated in a messy imbroglio of liability determinations." Legal Times urges providers to hire lawyers now to begin generating a protective paper trail (Eisenstat/Elder, 3/22 issue).
- Protections for health plans under the Employee Retirement Income Security Act could be eroding, as recent decisions by the Third Circuit have pointed the way toward liability for negligent health plans. Legal Times reports that federal courts have heard malpractice claims arguing that providers are agents of carriers and are therefore "vicariously liable." Claims have also been considered against carriers for failing to properly hire and supervise the medical personnel who caused the damage (Rosen/Mellin, 3/22 issue).
- As the August deadline under the Health Insurance Portability and Accountability Act looms for Congress to pass medical privacy protections, a bill backed by liberal Democrats that would require patient permission for any use of medical records has already been submitted and a less restrictive Republican version is being drafted. Legal Times reports that the insurance and drug industries have lined up a "powerful" lobbying team to fight the bills, claiming they would "hobble drugmakers' ability to do research and insurance outfits' ability to provide cost-efficient services" (Loewenberg, 3/22 issue).
- The Oregon Health Division's report released last month evaluating assisted suicide showed that the law's implementation went smoothly and just 23 people chose to end their life with the help of a doctor -- findings hailed by supporters of the law. But Legal Times reports that the victory party could be shortlived since the report avoided the issue of noncompliance with the law. If this omission is corrected, the Times warns that it may paint a less-perfect picture (Spindelman, 3/22 issue).