By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In representing healthcare professionals in complaints against their licenses, we see similar cases repeatedly. The physician could have avoided many Department of Health (DOH) complaints that may wind up before the Board of Medicine.
These are the ten biggest mistakes we see physicians make that lead to DOH complaints and investigations against them.
1. Requiring patients to pay an outstanding medical bill before releasing a copy of their health records. The law prohibits this. However, the patient can be charged for the copy of the record, up to $1.00 per page for the first 25 pages ($.25 per page after that).
2. Not having the original patient x-rays or a good digitized copy. Believe it or not, many health care providers we have represented either gave their x-rays to the patient or sent them to a subsequent treating physician. Always release copies (for which you may charge). Always keep the originals. (Not having them when needed). With the expanding use of digital x-rays stored in an electronic medical record, this is not as problematic as it was in the past.
3. Accept a new patient who has had more than one other primary doctor within the prior five years (when the patient hasn’t relocated to a new geographical area). Unhappy, disgruntled, unrealistic patients will change physicians often. Identify these patients early and refuse to accept them as your patients or terminate them as patients as soon as you identify them. This is closely related to failing to terminate the “disgruntled” patient. If a patient is a chronic complainer or threatens to sue or file a complaint, this is a patient who will, most likely, never be satisfied. Terminate this patient immediately.
4. The patient is not fully informed of possible less-than-desirable outcomes (documenting this in writing, preferably signed by the patient). This includes, but is not limited to, the fact that there may be subsequent pain or infection.
5. Failing to have and use appropriate consent forms, including, but not limited to:
a. Refusal of a treatment consent form
b. Consent for less than optimal treatment (when the patient refuses to follow the physician’s recommended treatment plan). This is also called “Refusal of Recommended Treatment.”
6. Failing to refund medical fees when complaining patients demand it. We do not routinely recommend that you refund fees based solely on a patient’s demand that you do so. The patient will have benefited from the treatment, procedure, or appliance and should pay for it in many cases. However, this must be a business decision based on risk management principles in many instances. It is always a good idea to weigh the amount in attorney’s fees, time, aggravation, mental anguish, or increase in insurance premiums that will result if you fail to refund demanded costs. Base your decision on a calculation of how likely it is that a complaint will result.
7. Failing to have good, legible, comprehensive treatment records on the patient. The healthcare provider must create a documented, comprehensive written treatment plan and have the patient sign it in all cases except for emergency cases and specialty consults. This also includes failing to prepare and maintain charts on a patient. If you are going to treat and follow a patient for more than an emergency visit or a specialty consultation, you should perform an exam. Just as important, the Board of Medicine will expect you to chart this.
8. Failing to document the type and amount of a drug administered, a sedative used, a compound used, etc. Be sure this is accurately stated in your chart. Be sure this is accurately billed with the correct billing code.
9. Failing to give patients a copy of their medical chart within a reasonable time after the request (the courts usually define “reasonable” as 14 calendar days or ten business days; however, the Board of Medicine allows up to 30 days). If you can reasonably provide it earlier, do so, documenting the date.
10. Producing only part of the complete medical chart to the patient, subsequent treating physician, or DOH investigator when requested. This has become more problematic as physicians’ convert more and more into electronic health records. Be sure to print out and produce all treatment plans, histories, physical exams, family history questionnaires, medical history questionnaires, informed consent forms, photographs, treatment plans, x-rays, progress notes, daily journal entries, bills, correspondence with health insurers, or other third-party payers. Also included are prior physicians’ records received, operative reports, or any other documents you have relating to the patient’s treatment.
These are not hard and fast rules. Therefore, we cannot assure you that you will never receive a DOH complaint, a patient complaint, a grievance, or a lawsuit if you follow them. However, if you follow them, you will probably find your patients happier, your practice calmer and more productive, and your risks of having a complaint filed significantly reduced or eliminated.
Contact Health Law Attorneys Experienced in Department of Health Complaints and Investigations of Health Care Professionals Today.
The attorneys of The Health Law Firm provide legal representation to physicians, dentists, dental hygienists, physicians, nurses, nurse practitioners, CRNAs, pharmacists, psychologists, and other health providers. They have been involved in Department of Health (DOH) investigations, Drug Enforcement Administration (D.E.A.) investigations, F.B.I. investigations, Medicare investigations, Medicaid investigations, and other types of investigations of health professionals and providers.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2022 The Health Law Firm. All rights reserved.
