PROFESSIONAL LIABILITY • BUSINESS ORGANIZATION • LITIGATION
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Social Media and Consumer Reviews:
New Challenges for Health Care Businesses A recent report in the Washington Post broke the news that the consumer review site Yelp will be adding “a ton of health care data” to its review pages for all manner of medical businesses, including hospitals, nursing homes and out-patient clinics. The Post story explains that the Yelp data is to be sourced from a ProPublica compilation of research and government figures, such as those from the Centers for Medicare and Medicaid Services (CMS). These data will include, for example, hospital wait times, the rate of treatment-related infections or re-admissions, and fines and other penalties incurred paid by care facilities for regulatory violations. Consumers have always been able to post individual Yelp reviews of medical care providers and facilities. While the health care category now accounts for only 6 percent of the businesses reviewed by Yelpers, the site’s executives hope that the new data features will increase the amount of Yelp reviews and traffic surrounding care provider businesses. Yelp’s move represents another important development in the ever-expanding role of the internet and social media in shaping client and patient perceptions of health care providers and facilities. In a field where providers have traditionally found new patients through direct referrals and insurance/payer networks, internet connectivity has given an enhanced voice to the public. Based on a 2012 survey of thousands of consumers and executives regarding the role of social media in health care, the PWC Health Research Institute reported: According to the HRI survey, 42% of consumers have used social media to access health-related consumer reviews. Thirty-two percent of respondents have used social media to view family/friend health experiences, and 29% have sought information related to other patients’ experiences with their disease. Reviews and reports on internet and social media, when positive, can have the same effect as endorsements and testimonials, an outcome that many care providers would welcome. Unfortunately, the exceptional dissatisfied client or patient review often finds the “loudest voice,” and may drive traffic in an unwanted direction. Even when the majority of reviews regarding a given provider may be positive, the negative review may feature bombastic language and outrageous accusations that keep other potential clients and patients at bay, especially when they can find competitors with listings that appear on the very same web page. These concerns are especially significant for providers of elective and cosmetic services and procedures that fall outside of insurance coverages. The “solutions” that may be offered by web platforms hosting reviews, such as pay-offs to dilute or remove negative comments, or expensive internal “arbitrations,” can be self-serving and illusory. LP&J’s attorneys have significant experience in assisting health care providers and facilities respond the numerous challenges posed by unfavorable internet and social media reviews. Even when individual web site policies may read to limit or prohibit the removal of negative reviews, effective communications and negotiations with the site administrators on behalf of our clients have proved otherwise. And while law suits against disgruntled customers and patients for defamation and libel might prove to be counter-productive, in appropriate cases we can evaluate and prosecute such claims. Though our work on behalf of care providers and related businesses, we have established working relationships with a number of capable vendors who can provide services in the areas of data traffic analysis, network security, forensic investigation, media tracking, and reputation management. Posted August 8, 2015 Victory for Agricultural Property Rights: June 22, 2015 Decision in Horne v. Department of Agriculture
The U.S. Supreme court, in an 8-1 decision, held earlier this week that the Fifth Amendment requires that the Government pay just compensation when it takes personal property, as when it takes real property. The case involved raisin growers who refused to set aside any raisins for the Government on the ground that reserve requirements established under orders issued pursuant to the Agricultural Marketing Agreement Act of 1937 were an unconstitutional taking of their property for public use without just compensation. “The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate ‘marketing orders’ to help maintain stable markets for particular agricultural products. . . . Marvin Horne, Laura Horne, and their family are raisin growers who refused to set aside any raisins for the Government on the ground that the reserve requirement was an unconstitutional taking of their property for public use without just compensation. The Government fined the Hornes the fair market value of the raisins as well as additional civil penalties for their failure to obey the raisin marketing order. The Hornes sought relief in federal court, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment (Horn v. Department of Agriculture, 576 U. S. 1 (2015).” According to the decision, the fact that any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking, does not mean the raisins have not been appropriated for Government use. Nor can the Government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce. Fraud Alert on Medical Director and Office Staffing Arrangements
On June 9, 2015 the Department of Health and Human Services, Office of Inspector General, issued a fraud alert: Physician Compensation Arrangements May Result in Significant Liability. The notice was distributed as a warning to physicians to certify when entering into compensation arrangements, fair market value is reflected for “bona fide services the physicians actually provided.” The OIG’s alert was based upon 12 recent settlements involving individual physicians who entered into “questionable medical directorship and office staff arrangements.” The OIG alleged that compensation received by these physicians was considered improper under the anti-kickback statute and ultimately determined that the physicians acted as an “integral part of the scheme” under the Civil Monetary Penalties Law, and thereby subjected them to liability. 2014 Year in Review: Health Care Practice
For Lybeck Pedreira & Justus, 2014 was an eventful year in its comprehensive litigation, regulatory and business consulting practice in service of a wide variety of health care providers, assisted living facilities, and Adult Family Homes. In March 2014, Benjamin Justus assisted a physician in achieving final dismissal of an appeal by a patient alleging injuries from a breast biopsy procedure. During the prior year, LPJ had obtained dismissal of the patient’s claims on summary judgment, and the patient filed an appeal in January. Based on a motion to dismiss that Mr. Justus filed with the Court of Appeals, the plaintiff was convinced to voluntary withdraw the appeal, and the Court of Appeals entered a certificate of finality bringing the matter to conclusion for the physician. Throughout 2014, Lory Lybeck and Benjamin Justus vigorously defended an interventional radiologist from claims by a patient alleging substandard care and lack of informed consent for a spinal injection procedure that was said to have caused permanent nerve damage and bowel dysfunction. The shifting theories of liability alleged by the plaintiff’s experts required LPJ’s attorneys to coordinate with a team of professionals, including experts in pain management, toxicology, interventional radiology, and FDA procedures. After completion of discovery and just before trial, LPJ’s attorney were able to negotiate a complete dismissal of the claims, with no settlement payment from the physician required. In April 2014, Lory Lybeck and Benjamin Justus obtained a complete dismissal of claims for medical negligence and wrongful death of an unborn child against a Registered Nurse, along with several other health care providers and groups and a regional hospital. These complex claims arose from severe complications of labor and delivery that reportedly resulted in personal injuries, permanent sterilization and the demise of a pre-term infant. After extensive discovery and sustained negotiations, the plaintiffs agreed to voluntarily dismiss the nurse from the action. In July 2014 Lory Lybeck and Benjamin Justus completed a jury trial on behalf of a primary care physician alleged to have failed to diagnose terminal colorectal cancer. The physician faced claims of medical negligence and wrongful death, and the plaintiff’s case was supported by testimony from one of the world’s leading experts on colorectal cancer prevention. After three weeks of evidence and argument, the jury entered a verdict in favor of the physician. In addition to these successfully litigated matters, Lory Lybeck and Benjamin Justus assisted several different physicians, nurses, nursing assistants and mental health professionals with disciplinary charges and investigations brought by the Department of Health and its Commissions governing the licensed practice of health care professionals. In many cases, LPJ’s attorneys were able to assist in having the investigations concluded with no charges made. In other cases, they negotiated amicable settlements of the charges that minimized the cost and administrative burdens facing the health care providers. Benjamin Justus assisted many Adult Family Home providers with various Department of Social and Health Services investigations and alleged deficiencies. LPJ’s efforts on behalf of health care providers were not only in response to claims, charges and lawsuits. Thomas Pedreira and Benjamin Justus also consulted several providers, assisted living facilities and heath care practice groups with regard to business, employment, corporate and insurance matters. LPJ’s attorneys continue to provide transactional advice and assistance with regard to group formations and reorganizations, employment agreements, and the purchase and sale of business assets. |
