Top 5 of 2016: Dermatology legal insights

In 2016, Dr. Goldberg offered guidance on a number of different legal issues ranging from informed consent issues, to off-label products, to whether or not you could lose your medical license for not paying your office rent. Here are his 5 most-read Legal Eagle articles of 2016.

My patient has destroyed my reputation with online reviews

Dr. Derm is not only a successful dermatologist, but he is also very internet savvy. He tinkers with his own website, he has great search engine optimization, and he finds that many patients come to his office because of his quality of care as well as his strong internet presence. In fact, he spends 10% of his annual gross earnings on marketing, much of which is internet based.  He often finds himself telling his peers how wonderful internet marketing is; that is, until one day, when he finds out that a disgruntled patient has slandered his reputation on the internet.

I charge more for some patients, now a patient is suing me

Dr. Cost has a large dermatology practice in an urban Midwestern community that over the last two years, despite the Affordable Care Act, has seen an increased number of people without health insurance. In fact, these uninsured patients have presented him with a unique economic opportunity: Dr. Cost charges his uninsured patients double what he bills to contracted managed-care insured patients. Not only does he charge these patients more, but he also aggressively pursues them with collection agencies if they fail to pay. Much to Dr. Cost’s surprise, such an uninsured patient sues him over this dual pricing scheme. Can Dr. Cost charge higher fees for the uninsured as compared to the insured?

A simple complication, a massive lawsuit

Dr. Derm has a very large dermatology practice where he practices both medical and cosmetic dermatology. In addition, Dr. Derm is actively involved in many clinical research studies.  One such 32 year old investment banker subject had her bloods drawn at the end of a particular FDA study visit. After the bloods were drawn by his medical assistant, the subject was told, by the medical assistant, to get dressed and schedule her next appointment. Fifteen minutes later, Dr. Derm walked in to the exam room and found the patient on the floor. She had experienced a vasovagal reaction. Dr. Derm was able to get her on the table and she seemed to recover. He sent her home.That night, the patient had a seizure and was taken to the emergency room. She was found to have a large subdual hematoma from the fall after the vasovagal episode. Unfortunately, she died 3 days later.

The deceased patient’s family (husband and 2 children) brought a $20 million dollar lawsuit against Dr. Derm and his medical assistant. He is beside himself.  How could this happen from a simple fainting episode? Even worse in his mind, he was treating her for free. Shouldn’t he be protected while undertaking an FDA trial?

Was there fraudulent coding just because I used a novel treatment approach?

Dr. Skin, recognizing that his office expenses continued to rise despite decreasing revenues from his medical dermatology patients, decided to offer some cosmetic treatments to his patients. After considering various possibilities, he bought an intense pulsed light source laser (IPL). Unfortunately, the initial burst of increased revenues from these cosmetic treatments waned and Dr. Skin was left with the dilemma of trying to make his monthly cosmetic device lease payments without the requisite income required to support the payments.

He decided to become creative after he noticed that some of his older IPL-treated patients appeared to have a decrease in facial actinic keratoses after their treatment. Over the course of the next few years, Dr. Skin used his IPL to treat virtually every actinic keratosis patient and coded for a medical destructive treatment.

Ultimately both private carriers and his Medicare carrier (by way of the US Department of Justice) audited his medical records and accused Dr. Skin of fraudulently using medical based coding for cosmetic IPL procedures. Dr. Skin seeks legal help. His attorney advises him that if he is found guilty of committing fraud, he faces both civil penalties as well as possible jail time. Is this true?

Are covering residents negligent for missing complications?

Dr. Jones is a dermatologic surgeon who oversees a recently established ASDS Cosmetic Dermatology fellowship program. He recently performed laser lipolysis on the thighs and knees of Mrs. Smith, a healthy 50-year old women and is on no medications. The patient left the office without any difficulty at 11:00 a.m. in the morning. At 4:00 p.m. that same day, Dr. Jones called Mrs. Smith to check on her post-operative course. She reported some discomfort behind one knee, but otherwise no difficulties. At 6:00 p.m., Dr. Jones called his already board-certified cosmetic dermatology fellow (Dr. Owens) and signed out to him. He discussed Mrs. Smith’s surgery with Dr. Owens.

At 8:00 p.m., Mrs. Smith called Dr. Jones’ office with a concern about her surgery and eventually spoke with Dr. Owens. Dr. Owens discussed the situation with Mrs. Smith, explained he is the “fellow” and reassured her that such findings are probably are unrelated to her treatment.  He suggested she try to go to sleep and call Dr. Jones in the morning.

The next morning, Mrs. Smith awakened to find she was short of breath. She immediately returned to Dr. Jones’ office. He immediately sent her to the emergency room. She was found to have a deep vein thrombosis behind her knee, multiple pulmonary emboli and was in congestive heart failure. She survived, but is now a cardiac cripple.  Had the deep vein thrombosis been evaluated the day before, it is possible the pulmonary emboli and heart issues may never have occurred. Mrs. Smith brings a negligence cause of action against both Dr. Jones and the covering fellow, Dr. Owens. Is Dr. Jones liable?