6 Tips to Avoid or Face Medical Lawsuits and Criminal Investigations

By Joe Flores, JD, APRN, FNP • Nurse Practitioner
Published on Sep 19, 2017

Op-Med is a collection of original articles contributed by Doximity members.

    1. Do not ignore a lawsuit. If you are served with a lawsuit, do not ignore it. Talk to a lawyer immediately. Failing to answer a lawsuit can be disastrous and lead to a finding of negligence, or worse, it can lead to a judgment against your property and place you at risk of losing your license.
    2. Do your due diligence ahead of time. When taking a job or entering into a partnership, contemplate hiring a lawyer to do a due diligence and background check on the institution, clinic, and the parties you plan to work with (yes, even on your fellow colleagues — it’s a brave new world). You may be surprised that there are pending lawsuits, embarrassing divorce litigations, and bankruptcies — that could affect you directly or indirectly — governmental investigations, and/or board or regulatory complaints that are ongoing. Do not be shy about being upfront by doing due diligence. You only have one license, and multiple landmines that can strip you of that license.
    3. Know the target areas for the government. Pain management clinics, home health medical director positions, and face-to-face visits are presently problematic and will be for the foreseeable future. There is nothing wrong with these practices, per se, but the few unscrupulous and unlicensed consultants, owners, and marketers can lead a practitioner into harm’s way just by association. I have seen a doctor, PA, or APRN’s name thrown around federal and state criminal prosecution debriefing rooms who were lax on doing face-to-face visits or who pre-signed prescription pads for pain medications more than once. You do not want your name on those lists. Be smart and a little paranoid.
    4. Carefully document. In this day and age of the electronic medical record, careful documentation is key. Clicking and charting by exception may seem easy but careful teaching, instructions, and discharge planning, as well as good bedside manner, are essential to avoid being named in a lawsuit or reported to the federal or state government or board. Patient perception is key: “Did the practitioner return my calls?” “Did he or she explain why my father died? Did he or she run tests or request consults in a timely manner?” “I don’t understand the billing, and my practitioner never called me back, what do I do but call CMS or the board?” These are frequent questions that go unanswered and turn into lawsuits, board complaints, or worse. Do not hesitate to consult with a colleague or refer out pain patients. Questionable diagnostic results involving pathology, cancer risk, or cardiac, stroke, or pulmonary issues are the main things we see come across our firm’s desk. It is OK to say, “I am not sure but let me find out.” You are better off asking questions and handling a situation correctly, especially with litigation and government investigations on the rise. When in doubt, farm it out.
    5. Do not talk to anyone about the case without an attorney present. If you are named in a lawsuit or a part of an investigation, DO NOT talk with agents, other colleagues, or any third party without an attorney being there that you have hired. Anyone can be a witness against you, and as many of us have heard from the legendary Miranda case (as in Miranda warnings), “anything you say can and will be used against you in a court of law.” The best response to a badge and a gun in front of you is to say: “I respect your job, your investigation, and I do want to help all I can, but I simply cannot comment without my attorney being present.” If a threat of prosecution or arrest is mentioned, this is an acceptable response as your heart is pounding in your ears: “If you are here to arrest me, I am not resisting, but wish to call my lawyer before I am taken in, know what the charge is, and respectfully decline to be interviewed at any time until my attorney arrives.” Repeat this while being detained each time the investigators try to engage you with the old, “Are you sure you don’t want to talk? Now’s the time before the judges, lawyers, and your slick attorney get on board… We can help.” Don’t buy it. Wait for the attorney. When detained assume everything is being recorded including your calls. This may sound like an extreme scenario but it is not. Truly.
    6. Carry your own insurance and get to know a lawyer who handles civil, criminal, and administrative matters. Although we are a rare breed indeed, lawyers who take on health care provider cases must be able to handle all three areas of the law with skill, a lot of experience, and hard-earned knowledge. One board hearing can turn criminal if not handled properly. Example: A medical director of a nursing home being sued as a part of a pressure ulcer/sepsis/death-case turned ugly when the wrong attorney was at the helm — one who only practiced in the civil arena and had no knowledge of criminal law. A deposition took place where the doctor made admissions of never seeing the patient or personally doing a physical exam. That admission was a slam dunk for the civil lawsuit, but also sworn testimony for a district attorney and for a medical board to use to a) prosecute and put the practitioner in jail, and b) strip him of his license. A classic case of being on record under oath where a practitioner admits to negligence that rose to criminal endangerment of the elderly, which is a criminal felony in most jurisdictions and a sworn confession to boot. The right lawyer can advise you to invoke your 5th Amendment right to remain silent at the right time to prevent disastrous results, and the wrong lawyer can unwittingly sell you down the river.

Disclaimer: This article is not to be construed or relied upon as legal advice for a particular case. You are encouraged to contact the attorney of your choice. This article is intended for general educational purposes only.

Joe Flores JD, APRN loves what he does. He protects, represents and advises healthcare providers every day and still sees patients in the house call and long-term care setting on a weekly basis. Joe is a national speaker on areas where the law and medicine overlap and is in his 16th year of practice as a trial lawyer in civil, criminal and licensing board matters. He is a federal practitioner and has worked extensively on civil and criminal prosecution cases involving healthcare fraud. Now with the exploding opioid crisis investigation/prosecutions, Mr. Flores is in demand to speak and consult on these areas and preventing health care fraud allegations or investigations in any practice. Joe can be reached anytime 24/7 on call at 361.887–8670 or joe@floreslawfirm.com or by visiting www.floreslawfirm.com.

Image by Evlakhov Valeriy/Shutterstock.com

Originally published on Doximity

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