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Healthcare Law

HEALTHCARE LAW


PRACTICE AREA / UTAH HEALTHCARE LAW ATTORNEYS

We represent doctors, health care providers, and hospitals in all aspects of healthcare law including medical defense, malpractice, government regulation, and compliance, as well as medical products and drug litigation.

UTAH HEALTHCARE LAW



The healthcare attorneys at Richards Brandt have a long history of defending medical and healthcare professionals. Our healthcare law attorneys have devoted their legal careers to assisting and defending health care providers in all aspects of healthcare law. We represent individuals, businesses, and some of the intermountain west’s largest healthcare organizations and insurers in medical related matters including:

  • Medical Malpractice Litigation
  • HIPAA Compliance
  • Stark / Anti-Kickback
  • Formation of Healthcare Related Businesses and Organizations
  • Medical Products and Prescription Drug Claims
  • Physician Licensing Issues and Credentialing Matters (and obtaining privileges)
  • Mediation & Arbitration
  • Medical Defense Legal Services
  • Insurance Coverage Interpretation & Evaluation for Healthcare Professionals and Providers
  • Training & Audits

RECENT HEALTHCARE LAW UPDATES



Robinson v. Taylor: The Inadmissibility of a Physician’s Prior Unrelated Felony Convictions Where Credibility is Not at Issue



HEALTHCARE LAW ATTORNEYS AT RICHARDS BRANDT IN SALT LAKE CITY



MEDICAL MALPRACTICE LITIGATION

We represent physicians, hospitals, clinics, assisted living centers, dentists/oral surgeons, plastic & cosmetic surgeons, pharmacies, nurses, skilled nursing facilities, custodial treatment facilities, medical spas, custodial treatment centers, among other health care providers in a variety of medical malpractice litigation matters including birth injuries, delay in diagnosis, failure to diagnose, and wrongful death as well as other complex medical malpractice litigation. Complex medical malpractice litigation includes prenatal, neo natal, traumatic brain injury cases, multiple party cases, neurosurgery, genetics, neuropsychology, as well as other specialized and technical areas of medicine.

Our team specializes in navigating the technical aspects of medicine and malpractice litigation. We take great care to understand the medical aspects of each case, develop specific strategies to effectively represent you, and to convey complex medical concepts to a jury. While many medical malpractice claims are mediated, arbitrated, or dismissed, our extensive trial experience makes our team uniquely qualified to make your case to a jury and guide medical professionals through this difficult process from the first pre litigation panel review hearing through trial.

It is always tough to hear you are being sued or someone has filed a complaint against you. We take the time to help each client understand the process, what each stage of the process may bring, how it affects you and your practice, and how to handle the professional and personal inquires from your peers and community.

There are three important points that directly impact the healthcare provider or doctor being sued. First you are required to participate in a pre litigation panel review in front of DOPL, second you are called upon to give a deposition, and the third you will appear at trial. We understand you have questions and we will be with you throughout the process.

HIPAA COMPLIANCE

Interpreting and applying the Health Insurance Portability and Accountability Act of 1996 (HIPAA) is sometimes as difficult as figuring out when each regulation went into effect. Everyone in the medical community knows about HIPAA privacy rules but rarely do healthcare professionals or employers recognize the security rules and notification rules required by HIPPA. Many of these rules were finalized in 2013 and in that finalization they made changes to security rules and breach of notification rules. Interpreting these rules and the changes made to them, often times requires legal expertise in order to apply them appropriately to your unique business and medical circumstances.

We offer audit services, reviews of rights to access records, compliance reviews, responses to enforcement agencies and defense of HIPAA practices for medical facilities.

  • Logistical & physical file management and access
  • Privacy, Security and Breach Notification Rules
  • HIPAA Privacy Rule, which protects the privacy of individually identifiable health information
  • HIPAA Security Rule, which sets national standards for the security of electronic protected health information
  • HIPAA Breach Notification Rule, which requires covered entities and business associates to provide notification following a breach of unsecured protected health information
  • Confidentiality provisions of the Patient Safety Rule, which protect identifiable information being used to analyze patient safety events and improve patient safety. The Patient Safety and Quality Improvement Act of 2005 (PSQIA) Patient Safety Rule

There is no substitute for meeting with an attorney who understands your business and what you do. From little things like never turning your screen toward a patient to full audits protecting your business and creating a defensible position, managing risk is critical to the success of your business. Contact Brandon Hobbs, he can answer your questions and evaluate your situation.

STARK / ANTI-KICKBACK

Understanding the regulations and legal interpretation of the Anti-Kickback Statute and Stark Law is complex at best. Yet health care providers must carefully navigate these laws when they provide referrals and services to Medicare and Medicaid recipients.

The Anti-Kickback Statute (42 usc § 1320a-7b(b)) prohibits offering, paying, soliciting or receiving anything of value to induce or reward referrals or generate federal health care program business.

The Stark law (42 usc § 1395nn) prohibits a physician from referring Medicare patients for designated health services to an entity with which the physician (or immediate family member) has a financial relationship, unless an exception applies AND prohibits the designated health services entity from submitting claims to Medicare for those services resulting from a prohibited referral.

Contact Cortney or Brandon if you have questions about Stark or anti-kickback regulations.

PPACA

The Patient Protection and Affordable Care Act (PPACA), commonly called the Affordable Care Act (ACA) or “Obamacare”, is a United States federal statute. Together with the Health Care and Education Reconciliation Act, it represents the most significant regulatory overhaul of the U.S. healthcare system since the passage of Medicare and Medicaid in 1965.

The ACA was enacted with the goals of increasing the quality and affordability of health insurance, lowering the uninsured rate, and reducing the costs of healthcare for individuals and the government. It introduced a number of mechanisms—including mandates, subsidies, and insurance exchanges that exposes employers to more liability and more compliance challenges.

US Department of Labor regulates the employer specific rules under Employer Shared Responsibility, but the IRS administers and enforces many of the employer responsibilities. Complying with the complex sometimes conflicting regulations between these two enforcement agencies can be difficult. Contact Brandon Hobbs, he can answer your questions and evaluate your situation.

FORMATION OF HEALTHCARE RELATED BUSINESSES AND ORGANIZATIONS

Whether you are forming a for-profit company or a not-for-profit organization, creating a legal entity that is protected requires an understanding the structure of business entities, IRS Regulations and your industry. Our team extends out to cover all of your legal needs personally and professionally.

Asset protection and business management are critical for any organization, our attorneys not only have the business formation knowledge but direct medical industry experience.

MEDICAL PRODUCTS AND RX DRUG CLAIMS

Medical product liability and prescription drug liability involves multiple parties including doctors, nurses, pharmacy professionals and manufacturers, to name a few. Each may require individualized representation. These cases are complex and often multidistrict, we represent the physician caught in the middle and collaborate with other defense attorneys representing other involved parties. Contact us for more information on medical device product liability defense.

PHYSICIAN LICENSING ISSUES AND CREDENTIALING MATTERS

Representing health care professionals in licensing issues with the Division of Occupational and Professional Licensing is an important facet of the medical review process. When credentials are threatened or called into question, physicians need representation to protect their license, their practice, and their livelihood. We also assist in obtaining privileges.

MEDIATION & ARBITRATION

Mediation and binding arbitration are different and require different approaches. An attorney should be present with you during any discussion, deposition or interview. We will prepare you for every stage of claim or lawsuit. Read More

MEDICAL DEFENSE LEGAL SERVICES

A good medical defense starts with understanding the laws that apply to your practice before a claim is filed. We provide legal reviews of medical records, prepare medical staff for the administration and compliance of applicable laws for your practice, prepare witnesses for depositions and trials, assist in preparing expert testimony, determine what records should be shared and when, how to respond to a subpoena, best practices for patient communication and charting appropriately, complying with the laws that relate to telephone and video consultations and messages (secured line), administering informed consent, proper arbitration agreement procedures, etc…each has specific laws and guidelines depending on which state you are practicing in.

INSURANCE COVERAGE INTERPRETATION & EVALUATION FOR HEALTHCARE PROFESSIONALS AND PROVIDERS

Evaluating your existing coverage, interpreting what protection you have, and determining what additional risks may require coverage are just a few of the services we offer to our medical community. Once a claim is filed, it is critical to perform a complete review of the insurance policies and coverage to determine best case, worst case, most likely scenarios.

AUDITS

In many cases, our attorneys can do a quick spot check of your medical and business records and review a few representative documents in order to provide a sense and scope of what an audit may uncover. In other cases, clients have asked for a full review of all records. Either way, it is better to know what violations may be uncovered in an actual audit.

TRAINING

In addition to knowing you will successfully pass an audit, our attorneys work with your staff to ensure they are trained and knowledgeable in order to maintain files and comply with applicable laws moving forward.

FREQUENTLY ASKED QUESTIONS (FAQS)



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE / FEATURED FAQS



Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE – CASE STUDIES





Utah Manufacturing Company Needed Employment Contracts For Key Staffers




Utah Construction Company Needed Planning For Business Growth & Protection




Utah Family Enterprise Needed Guidance and Representation to Sell Business

REVIEWS




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Robinson v. Taylor: The Inadmissibility of a Physician’s Prior Unrelated Felony Convictions Where Credibility is Not at Issue

October 2015

On August 11, 2015, the Utah Supreme Court clarified the analysis required under rules 608 and 609 of the Utah Rules of Evidence in their opinion, Robinson v. Taylor, 2015 UT 69. Specifically, Utah’s highest court held that evidence of a doctor’s unrelated felony conviction is inadmissible in subsequent malpractice litigation when the physician’s credibility is not at issue and the prejudicial effect of the admission substantially outweighs its probative value. The Court further determined that it is reversible error for a trial court to admit evidence of a physician’s felony conviction in a civil tort suit where the physician’s credibility was not at issue and the prejudicial effect of the admission substantially outweighed its probative value.

In Robinson, the children of the Brad Robinson (“Mr. Robinson”) brought a wrongful death/medical malpractice lawsuit against a physician, claiming that the prescribing physician negligently prescribed methadone, which lead to their father’s death. The doctor testified during his deposition that he issued a written prescription to Mr. Robinson for a daily dosage of 140 milligrams of methadone. However, the doctor also testified that he had given Mr. Robinson oral dosing instructions for the methadone that differed from those reflected in the written prescription. Approximately one week after the prescription was issued, Mr. Robinson was found dead in his home. The medical examiner concluded that Mr. Robinson’s cause of death was “acute methadone toxicity.”

After Mr. Robinson’s death, but prior to trial in the malpractice action, the prescribing doctor was charged under federal law in an unrelated action for illegally distributing a controlled substance. The doctor pled guilty to one felony drug charge and was sentenced to prison. Due to his incarceration, the doctor was unable to attend the civil trial and his deposition transcript was used in lieu of his trial testimony.

During trial, the Robinson children sought to introduce evidence of the doctor’s felony drug conviction in order to impeach his credibility. The trial court concluded that evidence of the conviction was admissible under rules 608 and 609 of the Utah Rules of Evidence because it reasoned that the doctor’s credibility was at issue and the conviction was probative of the doctor’s character for truthfulness. Following this ruling, the plaintiffs subsequently read portions of the doctor’s deposition describing the events surrounding his felony conviction to the jury and discussed the felony conviction in closing. The jury ultimately awarded the Robinson children over $3 million in general damages and $300,000 in punitive damages.

On appeal, the Utah Supreme Court concluded that the trial court abused its discretion when it admitted evidence of the felony conviction because the doctor’s credibility was not at issue and the prejudicial effect of the criminal conviction evidence substantially outweighed its probative value.

Specifically, first, the court held that the felony conviction was not admissible under rule 608 of the Utah Rules of Evidence because rule 608 only permits impeachment evidence of specific acts that do not result in a criminal conviction. “[R]ule 608 allows specific instances of conduct to be inquired into on cross-examination if they are probative of a witness’s character for truthfulness.” The language of the rule “specifically excludes rule 608’s application to specific instances of conduct that result in a criminal conviction.” Accordingly, the trial court exceeded its discretion when it admitted the evidence of the felony conviction under rule 608 because the specific conduct resulted in a criminal conviction.

Second, the court held that the felony conviction was not admissible under rule 609(a)(2) of the Utah Rules of Evidence because the underlying elements of the felony drug charge did not require proving a dishonest act or a false statement. Rule 609(a)(2) provides that “crimes involving a statutory offense that require proving a dishonest act or false statement as an element of the crime are to be automatically admitted into evidence.” The trial court reasoned that the felony conviction must be automatically admitted under this rule because “writing a prescription under the false pretense of the existence of a doctor-patient relationship . . . pertains to a crime involving a dishonest act or false statement.” However, the Utah Supreme Court ruled that this was reversible error because “[w]hile it is possible that distributing a controlled substance may be done in a deceitful manner, the offense for which [the doctor] was convicted . . . does not include elements of a dishonest act or false statement as part of the statutory offense. . . . Accordingly, admission of [the doctor’s] prior conviction of a narcotics violation was improper under rule 609(a)(2).”

Finally, the court concluded that the felony conviction was not admissible under rule 609(a)(1)(A) of the Utah Rules of Evidence because the doctor’s credibility was not at issue and the danger of unfair prejudice as a result of the admission substantially outweighed any probative value that the evidence of the conviction would provide. “[W]hether [the doctor] gave the oral dosing instruction to Mr. Robinson was not a ‘consequential fact’” and “only a tangential issue” because “the Robinsons argued that [the doctor] was negligent regardless of which dosing instructions were given.” As such, “whether [the doctor] was telling the truth about the oral dosing instructions was inconsequential to the case and, therefore, there was no real need to impeach [the doctor’s] credibility.”

Furthermore, the court held that the admission of the felony conviction was unfairly prejudicial because both the “prior conviction and the negligence claims at issue here involve questionable prescriptions.” Where the factual allegations were so similar, the jury was more likely to “improperly infer[] from the conviction that [the doctor] was willing to prescribe dangerous medications without exercising proper diligence” or believe that the doctor had a “weakness of not being able to say ‘no’ to demanding patients.” “In short, the inferences to be drawn from the evidence of [the] prior conviction may have led the jury to conclude that [the doctor] should be punished, regardless of his liability in this particular case. This risk ‘creat[ed] a prejudicial effect that outweighs ordinary relevance” and, therefore, admission of the conviction by the trial court was an abuse of discretion.

Samantha Wilcox is an Associate Attorney with RBMN, with a background in Healthcare Law and Insurance Litigation.

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