Florida Board of Medicine Says: Take a Pause

Via Florida Board of Medicine – – – The Florida Board of Medicine’s Surgical Care/Quality Assurance Committee has been reviewing Rule 64B8-9.007, Florida Administrative Code – Standards of Practice in an effort to reduce the number of wrong patient, wrong site and/or wrong procedure disciplinary cases. This rule outlines requirements for taking a pause prior to beginning surgery to ensure you have the right patient, the right site and are performing the right surgery as described in the Informed Consent signed by the patient. The Board continues to see disciplinary cases in which the required “pause” is performed but surgery is still performed on the wrong patient, wrong site or the wrong procedure is performed. The Committee met three times and heard public testimony. During that testimony, it was determined the definition of surgery also needed to be clarified. Changes to the rule include:

  • Physicians are required to confirm the patient’s identity, confirm the procedure being performed and confirm the correct surgical site with another healthcare practitioner
  • “Pause” must be performed again if the physician leaves the room at any time during the procedure or surgery
  • Clarification of the definition of surgery

These changes are effective January 29, 2013 and are underlined in the rule language below:

64B8-9.007 Standards of Practice.

The Board of Medicine interprets the standard of care requirement of Section 458.331(1)(t), F.S., and the delegation of duties restrictions of Section 458.331(1)(w), F.S., with regard to surgery as follows:

(1) The ultimate responsibility for diagnosing and treating medical and surgical problems is that of the licensed doctor of medicine or osteopathy who is to perform the procedure. In addition, it is the responsibility of the treating physician or an equivalently trained doctor of medicine or osteopathy or a physician practicing within a Board approved postgraduate training program to explain the procedure to and obtain the informed consent of the patient. It is not necessary, however, that the treating physician obtain or witness the signature of the patient on the written form evidencing informed consent.

(2) This rule is intended to prevent wrong site, wrong side, wrong patient and wrong surgeries/procedures by requiring the team to pause prior to the initiation of the surgery/procedure to confirm the side, site, patient identity, and surgery/procedure.

READ ON

 

Florida Board of Medicine Set to Tackle Telemedicine Issue

Florida laws that pertain to telemedicine are precious few.  In fact, there is really only one regulation dead on target, and that requires face to face physician contact with a patient in order to write a prescription.  The impact of the hormone replacement therapy (HRT) providers was pretty immediate, but the legal issues related to telemedicine are just not currently addressed in Florida law.  Does providing a telemedicine consult create a physician patient relationship?  What are the requirements related to the medical records arising out of the consult, and who owns the records?  These issues and many more are simply not handled.  And yet, if it is true that telemedicine will be an important tool in the effort to both broaden the availability of care while reducing associated costs, we can be sure that Florida law will evolve on these issues. Continue reading

The Florida Healthcare Law Firm Goes National

Followers & Friends – BIG Announcement coming out today! If you haven’t seen our new NATIONAL platform, check it out here at http://www.nationalhealthcarelawfirm.com and stay tuned for our #healthcare #legal news at 2pm EST !!!

The Florida Healthcare Law Firm Announces National Expansion

(Delray Beach, FL) June 21st, 2012 – The Florida Healthcare Law Firm, one of Florida’s leading healthcare law firms, today announced a major increase in their legal practice capabilities with the official launch of the National Healthcare Law Firm, a d/b/a and new portal of the firm. The expansion to a national platform providing healthcare legal services to physicians and healthcare businesses is one that significantly increases resources for clients who lack qualified local healthcare counsel. While the Florida Healthcare Law Firm has for years assisted clients outside the state of Florida*, this new development further cements the firm’s commitment to providing ethical legal counsel in the healthcare industry.

“We are very excited about it. The fact that we serve clients all over the country has been a small secret for a while but we realized there’s a huge demand and decided to just go for it,” said Jeffrey L. Cohen, Esq. Founder and President of Florida Healthcare Law Firm.

According to Cohen, “It’s just a strange area of the law.  Nearly everything in healthcare business is regulated; leases, employment agreements, compensation.  Things you wouldn’t think are regulated are strongly regulated.  And there are large fines and criminal penalties for getting it wrong!  Our clients understand that healthcare business of any kind has serious legal risks and that they need uniquely qualified help.”

To request a service list or for any other firm information, call Autumn Piccolo at 888-455-7702 or visit the firm’s website at www.nationalhealthcarelawfirm.com or www.floridahealthcarelawfirm.com

*     *     *

Acknowledged throughout the country for its service and excellence, Florida Healthcare Law Firm is one of the nation’s leading providers of healthcare legal services. Founded by Jeffrey L. Cohen, Esq and headquartered in South Florida, FHLF provides legal services to physicians and healthcare businesses with the right pricing responsiveness and ethics. From healthcare clinic regulation, home health agency representation and physician contracting to medical practice formation/representation and federal and state compliance matters, the Florida Healthcare Law Firm is committed to bringing knowledge and experience to a diverse group of clients.

#FHLF October 2011 Newsletter

Click Here to view our October 2011 Newsletter:
http://conta.cc/qFxblP

Pain Management Regulations Affect More Than Pain Management Specialists

The recently passed House Bill 7095 affects more than just pain management specialists.  Practitioners who prescribe controlled substances for individuals with “chronic nonmalignant pain” also are required to comply with new state regulations, including designation “as a controlled substance prescribing practitioner on the physician’s practitioner profile”“with the state Board of Medicine by January 1, 2012. What follows is a bulleted summary of the new regulations.

Prescription s for controlled substances must be either written or electronic.  Telephone prescriptions no longer are allowed.

Written Prescriptions for Controlled Substances

  • Must have quantity in textual and numerical format
  • Must be dated with the abbreviated month written out
  • Must be written on a standardized counterfeit-proof prescription pad produced by a DOH approved vendor

Physicians who prescribe any controlled substance for the treatment of “chronic nonmalignant pain” must designate him or herself as a controlled substance prescribing physician on the physician’s practitioner profile and must comply with statutory requirements and applicable board rules

  • “Chronic  nonmalignant pain “ is defined as pain unrelated to cancer or rheumatoid arthritis which persists beyond the usual course of disease or the injury that is the cause of the pain or more than 90 days after surgery .

A complete medical history and physical exam must be documented in the medical record

The exact nature of the examination is not dictated, but it must be proportionate to the diagnosis that justifies treatment and must minimally document:

  • The pain’s nature and intensity
  • Current and past treatment for pain
  • Underlying or coexisting diseases or conditions
  • The effect of the pain on physical and psychological functions
  • A review of previous medical records and previous diagnostic studies
  • History of alcohol and substance abuse
    • Notably, patients with such a history require referral to, or consultation with, a phsyiatrist or addictionologist
  • The presence of one or more recognized indications for the use of a controlled substance

The Government Is No Friend to Investigated Physicians

Healthcare reform aside, physicians are increasingly buried under the weight of nonstop regulatory scrutiny and compliance requirements.  Even the most compliant physician will find, however, that the government is no gentleman when it comes to efforts to ferret out wrongdoing.

Physicians are most commonly confronted with the regulatory process by a phone call from an investigator or perhaps a written request for information.  Board of Medicine issues usually begin with the so called “45 day letter,” which invites a physician suspected of wrongdoing to submit a written response to an allegation of wrongdoing.  EMTALA violations are reported to the Department of Health and the Office of Inspector General, both of which will initiate contact with the physician in writing.

Though physicians may think a simple explanation will convince an investigator or attorney to back off, that is seldom the case.  Physicians wrongly think that the point of such investigations is to determine the truth.  They must instead accept that, once investigators and prosecuting lawyers have contacted them, there is already a belief that wrong doing has occurred.  Physicians would do well to understand that the job of the investigator and prosecutor involves just two things:  (1)  Seeing if the physician’s response is so convincing as to cause them to reevaluate their suspicion (it seldom is); and (2) to see if they think they have enough to justify a prosecution.  The investigator and prosecutor have a job, to find wrongdoing and to punish it!  They are not philosophers or social workers.  They are not counselors to have a really nice conversation with.  They are not to be trusted because their job is at odds with physicians who are the targets (or even witnesses) of their investigations.  If physicians can remember one thing, it is that they need the support of lawyers and others who know their way over this unfriendly terrain.

Innocent physicians caught in the investigative/prosecutorial process may feel impatient and frustrated.  “I’ve done nothing wrong, so surely if I just tell the truth everything will be ok.”  It’s just not that way; and it’s just not that simple!  Discussions with the government will take time and will require patience.  What physicians have to keep in mind is that, though they are innocent until proven guilty, if they are targets of an investigation, the investigator and prosecutor already suspect them of wrongdoing.  It’s a bit of an uphill climb!

Remarkably, even the best legal representation will not necessarily resolve matters quickly.  By the time physicians are aware they are being investigated, in many instances months have been spent working that case, and prosecutors are simply not inclined to immediately walk away from all that hard work.

Surprising still is that prosecutors will try to get a settlement, even when your lawyer tells you there is no wrongdoing.   Recall that the prosecutor has a job—find the bad guy and win the case.  If the prosecutor can get you to settle, particularly by paying money, they will call it a “win” and move on to the next case.  It is nauseating but true that sometimes it makes sense to settle, even when there is no wrongdoing, given the legal and related expenses.  But when settling is not an option because it causes a cascade of unacceptable consequences (e.g. a Board of Medicine investigation, a medical malpractice suit, becoming sanctioned by Medicare and perhaps even losing medical staff membership and managed care contracts), physicians have no option but to fight.

Probably most surprising, physicians who vigorously defend themselves may find that they never “win.”  That is, they are never told by a prosecuting lawyer that the government is giving up.  Physicians who have been the targets of government investigations will find that the sound of victory is often silence.  Government prosecutors simply get quiet!  You just stop hearing from them.

The best physician defendant is one well armed with guidance to traverse an inherently adversarial environment.