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Medical Records as Malpractice Defense

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A “Complete and Accurate” Record  

By J. Christopher Miller JD

J. Christopher Miller, Esq

The best defense against any medical malpractice liability claim is a complete and accurate written or electronic record of the facts.

To Observe and Treat

In particular, medical malpractice claims will frequently be stalled or thwarted by a consistent written description of the symptoms you observe and the treatments you prescribe.

Extensive record keeping will not only help formulate a defense against a claim, but it will also (and perhaps more importantly) create the appearance that you are careful and highly competent in all of your affairs. Members of a jury may not be able to discern whether the medical judgments you made in a particular case were good or bad, as they do not have the years of education and training that you do.

Trial Jurors

Jurors can, however, sense whether your practice is organized and professional. If your records are thorough and consistent, jurors will assume that you dedicate as much attention to the substantive aspects of your work as you do to the tedium of recordkeeping. If you are active in the management of your office, you should keep track of its operations and establish logs for your employees to complete as they perform their daily tasks.

Assessment

Not all information, however, ought to be written down. Keep your written records to the facts you have observed and leave your speculations for department meetings.

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Is a Captive Insurance Company (CIC) Right for Your Medical Practice?

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A Medical Practice Risk Management Strategy

By Guy P. Jones CFP®

Successful practices face multiple risks in their daily operations including loss of a medical license or professional certification, legal defense reimbursement, medical/Medicare collections risk, HIPAA violations, and reputational risk. Small- to medium-sized practices can benefit from risk-management tools that can help them handle such risks more effectively and reduce their overall insurance costs. To that end, the practice may want to consider the establishment of a Captive Insurance Company (CIC) to protect themselves from risks not typically covered by traditional insurance companies.

Captive Insurance Planning

Captive insurance planning is a strategy for physicians to manage risk through the purchase of a property-casualty insurance policy. Premiums paid by the practice to a properly structured CIC should be tax-deductible to the practice under section 162(a) of the IRS code just like their workers’ compensation or malpractice coverage.

When the practice forms a CIC, it receives premium income tax-free up to $1,200,000 per year, per captive. Profits that come out of the CIC come out as a distribution from a C-corp. as qualifying dividends or long-term capital gains, which are currently 15%. Furthermore, the CIC may retain surplus from underwriting profits within reserve accounts, free from income tax. Profits that accumulate within the CIC can be used as a tax-deductible sinking fund in order to save money on malpractice premiums by shifting to a high deductible policy and/or insuring that deductible through the CIC.

No Rules – Just Right

There are no hard-and-fast rules regarding the minimum amount of gross revenue from a practice or the minimum amount of insurance premiums paid by a practice before considering the establishment of a CIC.

Planning Opportunities

The establishment of a CIC creates immense planning opportunities for physicians because of the flexible ownership of the CIC. The CIC is set up as a C-Corp and someone or some entity owns the shares of the C-Corp While it’s important to keep in mind the primary business purpose of the CIC is for risk management, some potential planning opportunities include the following:

  • Wealth Accumulation/Surplus Retirement Income: Physicians own the CIC outside the practice for surplus dollars in retirement.
  • Asset Protection Planning: Most physicians have the CIC owned inside an asset protection trust to potentially shield pre-tax dollars and assets from judgment creditors or litigation.
  • Estate Planning/Wealth Transfer: Physicians who don’t need access to this money may be interested in having the CIC owned outside of their estate to also bypass gift and estate taxes with each premium payment.
  • Practice-Owner Benefits: By the CIC not being an employee benefit plan, it is not subject to the non-discrimination rules of ERISA, and therefore only benefits the owners of the practice.
  • Non-Mandatory Participation for Practice Doctors: Doctors at smaller levels can join together to create a CIC for economies of scale.

Enter the Experts

Physicians would be encouraged to discuss the various CIC planning strategies with their tax, estate planning, and other legal professionals to ensure that the most appropriate structure is utilized to fit their unique planning objectives. As part of our services to the practice, we would be happy to meet with the practice management and advisors to answer any questions and start the process of the feasibility of a CIC for the practice. As reassurance, this is already IRS-tested, and we strictly adhere to each IRS Safe Harbor Revenue Ruling for a conservative model offering very predictable risk management and tax planning results.

Assessment

While this is not intended to be a thorough discussion of CICs, it is meant to initiate a conversation with practices or conduct due diligence with their key advisors as to the many potential benefits of establishing a Captive Insurance Company.

About the Author

Mr. Guy P. Jones is a Certified Financial Planner in Houston, TX who has specialized in serving the financial planning needs of medical professionals and their families since 1990.  He can be reached at 832.677.1692, email: guypjones@guypjones.com, or by visiting his website: www.guypjones.com

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Doctor’s Lawsuit Targets Parents of Patient Who Overdosed

By Marshall Allen
ProPublica, Aug. 26, 2011, 10:57 am

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The dramatic rise in prescription narcotics use [1]—and the subsequent increase in overdose deaths—has led to a spate of lawsuits around the country targeting doctors for malpractice or running pill mills [2]. But legal experts say the case of one family physician in Henderson,Nev., stands out.

The case of Kevin Buckwalter

Dr. Kevin Buckwalter has turned the tables, filing a lawsuit against the parents of a young woman who died from an overdose of narcotics that he prescribed.

Buckwalter’s suit accuses John and Maggie DeBaun of abusing the legal process, intentionally inflicting emotional distress and interfering with his ability to do business by filing a medical malpractice case against him for the death of their daughter.

“I’ve never heard of such a lawsuit,” said Stacey Tovino, a professor at the William S. Boyd School of Law at theUniversity of Nevada, Las Vegas. Tovino and otherNevada legal experts said it appears to them that Buckwalter abused the legal process in an attempt to intimidate the DeBauns.

Buckwalter did not respond to a call for comment. His brother Bryce, who serves as his attorney, declined to comment about the lawsuit. In an email, he accused this reporter of harassment for attempting to contact his brother, said he would seek a restraining order and threatened to sue ProPublica.

A Controversial Subject?

Buckwalter has been a subject of controversy for several years. A 2008 Las Vegas Sun investigation [3], also by this reporter, highlighted the opinions of four pain-management specialists who reviewed Buckwalter’s care of patients and said it appeared to be negligent.

Staci Voyda, a teenager addicted to prescription narcotics, wrote in her journal that she went to Buckwalter to get off drugs. But his treatment included ramping up her dosages of narcotics. She killed herself in August 2007, and family members say the drugs pushed her over the edge.

Another Buckwalter patient, 69-year-old Barbara Baile, was prescribed large doses of narcotics, which caused constipation so severe it ruptured her bowels. A subsequent infection killed her.

These are prescriptions for Xanax and morphine written by Dr. Kevin Buckwalter for Andrea and Clint Duncan. (Sam Morris/Las VegasSun) | See Las Vegas Sun’s full investigation on Painful Painkillers [4].

The DeBauns’ daughter, Andrea Duncan, died in 2005 from intoxication with opiates and benzodiazepines [5], a class of drugs that includes Valium and Xanax. Four days earlier, her husband Clint, also a Buckwalter patient, had overdosed on prescription narcotics and died.

In a 2007 videotaped deposition [6] for an unrelated lawsuit, Buckwalter described the treatment he provided Duncan. Under oath, Buckwalter said he did not examine Duncan on her first visit because he “did not have time,” yet prescribed her 300 tablets of Xanax, an anti-anxiety medication, and the painkiller hydrocodone, a synthetic opiate.

The following year, the U.S. Drug Enforcement Administration and Nevada State Board of Medical Examiners stripped Buckwalter of his license to prescribe controlled substances. The DEA attributed at least eight overdose deaths [7] to Buckwalter. The medical board blamed him for four cases of malpractice [8], including one in which the patient died. Buckwalter closed his practice.

Dallaslawyer Kay Van Wey, who specializes in pill mill cases, filed six lawsuits against Buckwalter on behalf of patients who died or were harmed. The DeBaun case was filed in April 2009, past the statute of limitations in Nevada. But Van Wey argued in the complaint that the deadline should be extended because Buckwalter allegedly concealed his negligence and altered medical records.

A judge didn’t buy the argument and dismissed the case. Buckwalter claims in his lawsuit that the DeBauns sued to harass and annoy him.

Buckwalter has denied all of the allegations that he provided substandard care. His lawsuit against the medical board to get his prescribing privileges reinstated was unsuccessful.

Jeffrey Stempel, a professor at the UNLV law school, said that for the DeBauns’ lawsuit to be considered an “abuse” of the legal process, there would have to be some ulterior motive other than seeking damages for their daughter’s death.

Assessment

Ann McGinley, another professor at the UNLV law school, said it takes more than simply filing a lawsuit to support a claim of intentional infliction of emotional distress. And given that Buckwalter lost his ability to prescribe controlled substances in 2008, it’s difficult to see how the DeBauns interfered with Buckwalter’s ability to conduct his business, she said.

McGinley said that if lawsuits like Buckwalter’s became more common, they could have a chilling effect, discouraging patients from pursuing legitimate malpractice claims. “My concern is that other doctors will take this on as something that they will do regularly,” she said.

Link: http://www.propublica.org/article/doctors-lawsuit-targets-parents-of-patient-who-overdosed

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Financial Planning & Risk Management Handbook for Doctors and Financial Advisors

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About LegallyMine.Org

The National Foundation for Asset Protection

[By Staff Reporters]

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Legally Mine is a new name for a company formally known as The National Foundation for Asset Protection. The name change reflects the fact that they are a for-profit company and always have been.

Company Focus

The focus of the company is the education of professionals on the best tools available in the US for the purpose of asset protection.

Healthcare

Medical practitioners have taken a particularly hard hit from trial attorneys, and for years the firm has been the nation’s largest champion in defending them. However; they are not alone and many other professionals find themselves staring down the barrel of a legal shotgun. According to their website, Legally Mine knows the right tools to use in order to stop the loss of assets to legal pariahs, as well as the tools needed to lower tax bills. They not only know the right tools and how to use them, but reportedly know how to teach these concepts to others.

Assessment

The purpose and goals of Legally Mine is to teach professional associations how and why these tools will work and how to implement them.

Visit: http://www.legallymine.org/index.html 

Conclusion

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Medical Malpractice Trial Types

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Understanding the Litigation Process

By Dr. Jay S. Grife; Esq, MAinsurance-book

There are two types of trials, trial by jury and trial by judge. It is the task of the judge to determine the law, while the jury determines the facts.  In a trial by judge—called a “bench” trial—the judge determines both the law and the facts.  The U.S. Constitution guarantees a trial by jury.  If a party does not request a jury trial, however, the right to a jury trial can be waived.

The Statistics

Most civil cases in the United States are tried by jury.  Of the 3 percent of all cases that go to trial, the Department of Justice reports about two-thirds are jury trials, and one-third are bench trials. Whether to try a case to the judge or to a jury is strictly a matter of choice by the litigants.  If either party timely requests a jury trial, however, the case must be tried to a jury.  Because of the constitutional implications, in most cases both parties must waive their right to a jury trial in order for the case to be tried to a judge.  In a few instances, such as trials for injunctions and family law matters, a jury trial is not an option and a judge must hear the case.  However, the majority of civil issues offer the litigants a choice between bench or jury trials.

Notions and Perceptions

So why would anyone choose to have a case heard by a judge as opposed to a jury, or vice versa?  The reasons are mainly based on preconceived notions about judge and juror biases.  Generally, most litigants favor a jury over a judge because the decision is put into the hands of many rather than in the hands of one.  Plaintiffs usually like juries because lay individuals are believed to be more sympathetic, and a plaintiff can appeal to the emotions of a jury.  Conversely, defendants usually prefer bench trials because a judge is thought to be more objective in deciding a case.  Requesting a bench trial can also result in a much quicker trial date.  Since court dockets in most large cities are becoming increasingly congested, the time difference between a jury trial date and a bench trial date can be literally years.

Assessment

None of the perceptions about the benefits of a jury trial or a bench trial apply to all situations—every case is different.  There is at least some empirical evidence that some of the commonly held conceptions about bench and jury trials are actually misconceptions.  For example, while it is almost universally believed that juries tend to favor plaintiffs and award much higher monetary amounts, a recent study by the Department of Justice suggests that judges favor plaintiffs and return higher verdicts.  Still, jury trials outnumber bench trials by about two to one [1].

Conclusion

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[1] See Civil Jury Cases and Verdicts in Large Counties, Civil Justice Survey of State Courts at: http://www.usdoj.gov/bjs/abstract/cjcavilc.htm.

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Medical Negligence and the “Burden of Proof”

Understanding the Malpractice Trial Process

By Dr. Jay S. Grife; Esq, MAinsurance-book

In all civil trials, the plaintiff, as the accuser, has the burden of proving his case.  Much like a criminal defendant, a civil defendant has no burden and is presumed “innocent” of any claim by the plaintiff.  As a result, if the plaintiff presents no evidence, or insufficient evidence to support his claim, the defendant wins without having to present his case.  The burden the plaintiff carries is that he must prove his case by what is called a preponderance of the evidence.  In other words, the plaintiff must prove it is more likely than not that he should win.  The best way to visualize this burden is to imagine a set of scales.  If the scales are even, or tipped in favor of the defendant, then the plaintiff has not carried his burden, and loses.  In order to prevail, the plaintiff must tip the scales in his favor.

Proving Medical Malpractice

To prove a case of medical malpractice, a plaintiff-patient must present evidence that the defendant-doctor was negligent, and the plaintiff does this by proving the treatment provided was below the applicable standard of care.  The “standard of care” is the care and skill that a reasonably prudent practitioner would provide in treating a patient.  It is established by the medical community at large, and is constantly evolving.  Care that violates the standard of care today may not necessarily violate the standard of care several years ago.  This distinction is an important one, since most cases take several years to get to trial.  The standard of care is never based on the outcome of the case; a bad result does not necessarily mean a violation of the standard of care.

The Medical Expert Witnesses

Expert medical testimony is required to establish a violation of the standard of care in virtually all medical malpractice cases.  A plaintiff who fails to present the required expert medical testimony in a medical malpractice case will lose.  The plaintiff must also produce expert medical testimony that the alleged negligence caused the injury.

For example, suppose that a patient’s widow brings a medical malpractice case against a surgeon who admitted the patient for removal of an AO plate embedded in bone.  The plaintiff-widow alleges that the surgeon should have done something to prevent a pulmonary embolism, which occurred three days after the patient was dismissed from the hospital, killing him.  The patient might have an expert who would testify that she would not have removed the AO plate, but left it in place.  Such testimony does not carry the burden of proving care below the standard required of the surgeon.  Indeed, in most cases, the standard of care allows a practitioner to choose from a variety of treatment options within an acceptable range.  Mere testimony by an expert witness that “I would have treated this patient differently” is insufficient to establish a breach of the standard of care.  The bad result also is not itself proof of any negligence.  Nor is there any evidence that the doctor caused the patient’s death (i.e., that the embolism would not have occurred without the alleged negligence of the surgeon). Therefore, doctor wins on all elements.

Assessment

Have you ever been involved in a medical malpractice trial; or other healthcare litigation process? The Medical Executive-Post readers are interested in hearing your story.

Conclusion

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