Medicine & the Law

The same characteristics that define Internet e-health commerce are also giving rise to increased scrutiny by government enforcement agencies. The U.S. Department of Justice has started to expand enforcement activities in matters related to e-health web sites for both HCFA and FDA.

The OIG’s basic concern is that rent paid by physicians to other physicians who refer patients to them may be disguised kickbacks paid to the physician-landlords to induce referrals.

The aggressive use of all-products clauses in managed care participation agreements, sometimes referred to as "cram-down," is becoming the focus of increased scrutiny as insurers use them more coercively to build and retain their physician networks across product lines.

The emergence of e-mail communication in the delivery of patient care, although offering significant benefits, presents new legal and ethical challenges to physicians. If physicians are going to integrate electronic messaging systems into their practices, they need to be aware of the unique issues pertaining to such systems, inform patients of the relevant confidentiality, security and privacy issues presented by electronic medical communications and adopt appropriate policies, procedures and safeguards to meet the obligations associated with the use of such technology.

In addition to adding several new Safe Harbor Regulations, the regulations published by the OIG on November 19, 1999 revised several of the existing Safe Harbor Regulations that are relevant to physician practices.

The NLRB has concluded that interns, residents and fellows qualify as employees under the National Labor Relations Act. There is little question that the decision will have an enormous impact on the unionization of teaching hospitals.

Physicians can now participate in the burgeoning Ambulatory Surgical Center marketplace as investors and protect themselves from violating the Anti-Kickback Statute.

If a physician is contractually or statutorily obligated to continue treatment of patients of an insolvent PPO or HMO, he or she must do so or face exposure to liability and possibly licensure discipline.

Responding in the wrong fashion risks contempt orders or a patient lawsuit. Consider rules that allow the physician to assess the situation and proceed in a lawful manner sometimes without consulting counsel

Breach of fiduciary duty occurs when physicians delay providing necessary treatment to or withhold administering proper care to plan beneficiaries for the sole purpose of increasing their bonuses. Analysis of the Herdrich case and other case law developments.