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What Medical Providers and Hospitals should know before Prescribing Opioids in Illinois

We are in the middle of the deadliest drug crisis in U.S. history: the opioid epidemic. Federal, state, and local governments are scrambling to come up with a solution, along with health care providers, public interest groups, and the families of those affected. The statistics are shocking. According to a recent report from the Center for Disease Control and Prevention, overdoses from opioids increased by a staggering 29.7 % last year alone. The Illinois Department of Public Health reported that opioid overdoses have killed nearly 11,000 people since 2008 in Illinois, with 2,000 deaths occurring in 2017. How does this happen, and what are the solutions? It's an epidemic-sized question to tackle. More ›

NLRB Evaluation of Personnel Handbook Finds Moonlighting Policy Unlawful

Health care employers should take note of a recent decision of an Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) which struck down a number of employer policies in a Personnel Handbook, including a limitation on anti-moonlighting. Anti-moonlighting provisions are common in health care provider contracts and in personnel manuals of health care providers, including group practices, hospitals and other larger health care employers. The reasons for such rules in the health care setting are straightforward and largely non-controversial. They include the fact that risk to patients go up if employees are fatigued at work. Health care providers also may require varying shifts or mandatory overtime. Such rules minimize workplace conflict when employees are unable to satisfy the staffing requirements of their primary employer because of a second job commitment. Obviously, working for a competitor provider is also something that most group practices, hospitals and other providers, seek to limit. More ›

What Medical Providers should know about "Custom and Habit" Testimony

"If it wasn't charted, it didn't happen." Most medical providers have heard the adage, but is it true? Due to the realities of practicing medicine, health care providers are occasionally unable to document each and every aspect of their care within the medical record. What's more, a medical provider's recollection of a given patient's care can fade by the time a lawsuit is filed. So how might a nurse, mid-level, or doctor handle an aggressive Plaintiff's attorney who questions how, in the absence of documentation and recollection, a provider can nevertheless testify that a certain type of care was provided? Some providers can rely on their "custom and habit" to explain how they treat similar patients under a specific set of circumstances. In other situations, like Szekeres v. Mary T. Riggs, however, "custom and habit" testimony can be inadmissible. More ›

Using Electronic Medical Records to Combat the U.S. Opioid Crisis

In 2017, President Donald Trump declared the opioid crisis a national public health emergency. According to the most recent data gathered by the Centers for Disease Control and Prevention (CDC), more than 40% of all U.S. opioid deaths in 2016 involved a prescription opioid, with more than 46 people dying every day from overdoses involving prescription opioids. While stakeholders across the healthcare continuum are fighting the opioid crisis on many fronts, optimizing electronic medical records (EMR) technology has become a significant legislative and regulatory priority in this battle.  More ›

Court Holds Alteration of Medical Record does not Create Inference of Falsification

Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707

We're going to begin exploration of this recent Illinois decision, by referencing one of our favorite movies: The Verdict (1982) starring Paul Newman. In the movie, Newman's character, lawyer Frank Galvin, wins a medical malpractice trial on behalf of Deborah Anne Kaye against St. Catherine Leboure Hospital. During the trial, Galvin elicits testimony from Nurse Kaitlin Costello Price that the patient had eaten just one hour before a surgery during which she aspirated, resulting in her paralyzation and permanent vegetative state. On cross-examination from defense counsel for the Hospital, Nurse Kaye produces a photocopy of the original medical record which proves she had noted the time at which the patient last ate, as well as that the record had been altered by an anesthesiologist, Dr. Robert Towler, to conceal that fact. While the able defense attorney convinces the trial judge to suppress evidence of the altered record—as well as to issue an admonishing instruction to the jury to disregard all Nurse Price's testimony—the jury renders a guilty verdict, and even asks if it can increase the amount awarded to Mrs. Kaye's family.

With the advent of electronic medical records and audit trails, the ability of healthcare providers to deliberately alter medical records with the intention of concealing harmful information—all without being noticed—is limited at best. But what happens when a known alteration of a medical record calls into question the validity of a material fact? Is evidence of the alteration admissible? Does such evidence create an inference of falsification? These issues were addressed in Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707. More ›

Provider Defending a ZPIC Audit Fights Back With Significant Victory at Fifth Circuit

Imagine as a lawyer having to tell your client that the practice that they spent their career building may very well go bankrupt, without even the chance to have their day in court. That was exactly the situation at issue for a medical practice subject to a ZPIC audit. At issue was the ability of CMS to collect on alleged overpayments before final adjudication.

What the practitioner did in a case decided by the Fifth Circuit a few weeks ago provides a game plan for all providers confronting similar circumstances. In Family Rehabilitation Inc. v. Azar, attorneys representing the practice sought an injunction against CMS precluding the agency from recouping the alleged overpayment until the appeal had been decided by the Administrative Law Judge. The injunction was dismissed at the lower court level, but the group appealed the case and won. More ›

OIG Targets Chiropractors Yet Again in Report Recommending Aggressive Audit Procedures

Unsatisfied with prior efforts to curtail Medicare billing of chiropractic services, the Office of Inspector General (OIG) is doubling down by targeting chiropractors yet again. In 2013, the OIG estimated that $358.8 million or approximately 82% of all money paid by Medicare for chiropractic services was unallowable and issued instructions to CMS to use more scrutiny in paying for chiropractics services.   More ›

Reviewing Important Illinois Healthcare Court Rulings: Relation Back Doctrine

In our final post reviewing recent Illinois court decisions that made a significant impact on healthcare law in Illinois, we review Simpkins v. HSHS Medical Group, Inc., 2017 IL App (5th) 160478. More ›

Reviewing Important Illinois Healthcare Court Rulings: Evidence of Expert's Personal Practice Inadmissible

In Swift v. Schleicher, 2017 IL App (2d) 170218, plaintiff sought to impose liability on Defendant physician after he perforated Plaintiff's small bowel during a laparoscopic hysterectomy and failed to diagnose the perforations until four days later. Defendant attempted to introduce evidence that Plaintiff's expert perforated a patient's bowel during a 1989 procedure. More ›

Reviewing Important Illinois Healthcare Court Rulings: One Year Limitation to Provide a 2-622 Written Report

In Horlacher v. Cohen, 2017 IL App (1st) 162712, the Court held that Plaintiff's Third Amended Complaint was properly dismissed when she failed to include a Section 2-622 written report concluding that a "reasonable and meritorious cause" for her action existed. Plaintiff, appearing pro se, had previously filed three other versions of the Complaint without attaching the required Section 2-622 written report. More ›

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