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.
I’ve been a nurse for almost 30 years. I’ve been a nurse practitioner for 18 years. I have been an attorney who has proudly defended health care providers for most of my 16-year legal career. I still see patients weekly as a nurse practitioner. In other words, I am a bit of an anomaly. I get raised eyebrows and at national speeches and I frequently get asked, “ How did you go from nurse practitioner to lawyer?” The answer is that I reviewed cases for lawyers for a decade and loved the process. I loved seeing trials and being an expert witness. At the ripe age of 30 I went back to law school and 19 years later, here I am.
Despite good tort reform efforts, nationally health providers still remain a target in many jurisdictions for lawsuits. To make matters worse, we now have health fraud and the opiate crisis investigations to deal with that are on the rise. I have physician and PA/APRN clients caught up in that dragnet right now. Innocent providers are being painted with the same brush as the few lawbreakers. Welcome to the new healthcare order in the United States.
Being named in a lawsuit or an investigation can be an extremely stressful event for any healthcare provider including physicians, physician assistants, and advanced practice registered healthcare providers. To make matters more complicated, prosecution of health fraud and opioid crisis prescription cases, as well as Whistleblower cases, has exploded. The number of prosecutions, investigations, and litigation in civil, criminal, and administrative arenas is at an all-time high.
For decades the vision of a physician, APRN, RN, or PA in close proximity to lawyers is a thing to be avoided at all costs! But now, more than ever, physicians, APRN’s, and PA’s (hereinafter healthcare providers) need to know their rights. Getting a qualified lawyer for some consults and setting up a risk management and a litigation prevention plan may be your ounce of prevention.
What if you are named in a lawsuit or subpoenaed by the government?
When legal claims arise, healthcare providers must notify their insurance carrier or hospital if applicable in order to promptly address these claims. If the government comes flashing badges and subpoenas, providers must have a plan. Due to tort reform and reduction of awards in many states and the ubiquitous presence of the Internet on a handheld phone, patients can sue, turn in a healthcare provider for fraud, and report them to the board in a matter of one day. You should carry insurance independently of an institution even if it has the lower limits so that you may choose your attorney and have someone that represents you by your side at depositions. This is especially true if the investigation is both civil and criminal. This is becoming more frequently the case.
Duties of the insurance company
Defense and indemnity. In most states, the insurance company who represents the independent healthcare provider or institution has two main obligations under a malpractice policy: the duty to defend and the duty to indemnify. The duty to defend requires the insurance company to retain a lawyer to defend legal claims that are brought against the healthcare provider and/or institution. This duty also requires the insurance company to pay expenses relating to the defense. The duty to indemnify requires the insurance company to pay an amount up to the policy limits for a settlement or judgment on any covered claim against the healthcare provider.
NOTE: CRIMINAL CASES ARE ON THE RISE AGAINST HEALTHCARE PRACTITIONERS AND INSURANCE IS NOT GOING TO FOOT THE BILL IN MOST CASES.
In the last 5 years, I have seen a skyrocketing amount of criminal prosecution for healthcare fraud. Health fraud prosecutions have turned from civil penalties to the real threat of prison time. Even if only passively involved, a practitioner can be charged with aiding and abetting or conspiracy. The Department of Justice and other governmental entities are seeking to recover billions of health care dollars by civil and criminal prosecutorial means. Even the allegation of an intentional act can exclude insurance coverage (intentional acts are generally excluded from any policy). For this reason, I urge the healthcare provider to consult with a qualified attorney who has both civil and criminal trial experience in the healthcare arena. Often a whistleblower in a medical office who is disgruntled or may very well have evidence of prescription or billing fraud can bring down a governmental investigation that is not part of a medical malpractice suit. The Center for Medicare and Medicaid Services is on a mission to weed out the small percentage of unscrupulous providers and many innocent practitioners are being swept up in the dragnet.
Duties of the insured healthcare provider
Prompt notice. In order for a policy to cover the healthcare provider if accused of negligence or malpractice, the policy typically requires a healthcare provider who is insured to provide the insurance company with prompt notice of any potential claims or lawsuits against them. The insured must report any occurrence in a reasonable time frame — generally within 20–30 days is HIGHLY RECOMMENDED if not sooner. An insured healthcare provider’s failure to provide prompt notice could jeopardize the insurance company’s obligations both to defend and indemnify. Therefore, it is in the healthcare provider’s best interest to provide prompt notice.
Should a healthcare provider purchase insurance?
This is a frequently asked questioned: YES, YES, AND YES. A healthcare provider is generally covered under an employer’s or practice’s insurance policy. However, he or she may consider purchasing insurance if working as a contract or locum healthcare provider or as an independent contractor. The primary factor in determining whether the hospital is the employer of an individual is whether the hospital has the right to control the means and details, as well as the end result, of the individual’s work. Again, I STRONGLY encourage the reader to consider purchasing their own policy if they foresee leaving their present position or have any doubt as to the loyalty of the institution or practice they are associated with presently or in the past. Once you get notice of a lawsuit or a badge is waived in your face it is too late to buy a policy.
Remember, even if you’re covered by your institution’s insurance, having your own insurance provides distinct advantages. Coverage on your own shields you from liability outside of work 24 hours per day as well. Additionally, you may choose your own attorney. This may become crucial if you and your institution have a conflict regarding issues of liability and if finger pointing becomes an issue. This happens frequently in my experience. Also, a lawyer arguably has mixed duties to the insurance company. The payor of the policy and the client (who may be three separate parties). The practitioner may be dead last in the hierarchy of importance no matter what lip-service you hear from the insurance company or insurance lawyer. Also, having your own insurance policy provides you with a choice regarding which attorney to use and whether or not you wish to settle the claim. Often with a small deductible, the insurance company will allow you to pick your own attorney.
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 firstname.lastname@example.org or by visiting www.floreslawfirm.com.