july 2015 | physician magazine

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LACMA Welcomes 144th President

DR. PETERRICHMAN

L E G A L R I S K S F O R P H Y S I C I A N S I N T O D A Y ’ S H E A L T H C A R E C L I M A T E

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Volume 146 Issue 7

Physician Magazine (ISSN 1533-9254) is published monthly by LACMA Services Inc. (a subsidiary of the Los Angeles County Medical Association) at 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 90017. Periodicals Postage Paid at Los Angeles, California, and at additional mailing offices. Volume 143, No. 04 Copyright ©2012 by LACMA Services Inc. All rights reserved. Reproduction in whole or in part without written permission is prohibited. POSTMASTER: Send address changes to Physician Magazine, 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 90017. Advertising rates and information sent upon request.

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COVER STORY

6 DR. PETER RICHMAN TAKES THE GAVEL AS LACMA’S 144TH PRESIDENT

More than 200 LACMA member physicians and guests assembled on June 24 for the presidential installation of Dr. Peter Richman, who will serve as the president of the Los Angeles County Medical Association for the 2015-2016 year, and to celebrate and honor the organization’s elected healthcare leaders.

8 FEATURE | Legal Risks for Physicians

12 Surviving a Peer Review

15 Telemedicine & HIPAA – What Physicians’ Offices Need to Know to Be Compliant

FROM YOUR ASSOCIATION

4 President’s Letter | Peter Richman, MD

16 CEO’s Letter | Rocky Delgadillo

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SUBSCRIPTIONSMembers of the Los Angeles County Medical Association: Physician Magazine is a benefit of your membership. Additional copies and back issues: $3 each. Nonmember subscriptions: $39 per year. Single copies: $5. To order or renew a subscription, make your check payable to Physician Magazine, 707 Wilshire Boulevard, Suite 3800, Los Angeles, CA 90017. To inform us of a delivery problem, call 213-683-9900. Acceptance of advertising in Physician Magazine in no way constitutes approval or endorsement by LACMA Services Inc. The Los Angeles County Medical Association reserves the right to reject any advertising. Opinions expressed by authors are their own and not necessarily those of Physician Magazine, LACMA Services Inc. or the Los Angeles County Medical Association. Physician Magazine reserves the right to edit all contributions for clarity and length, as well as to reject any material submitted. PM is not responsible for unsolicited manuscripts.

The Los Angeles County Medi-

cal Association is a profes-

sional association representing

physicians from every medical

specialty and practice setting

as well as medical students,

interns and residents. For more

than 100 years, LACMA has

been at the forefront of cur-

rent medicine, ensuring that its

members are represented in the

areas of public policy, govern-

ment relations and community

relations. Through its advocacy

efforts in both Los Angeles

County and with the statewide

California Medical Association,

your physician leaders and staff

strive toward a common goal–

that you might spend more time

treating your patients and less

time worrying about the chal-

lenges of managing a practice.LACMA’s Board of Directors consists of a group of 30 dedicated physicians who are working hard to uphold your rights and the rights of your patients. They always welcome hearing your comments and concerns. You can contact them by emailing or calling Lisa Le, Director of Governance, at [email protected] or 213-226-0304.

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LACMA OFFICERS Peter Richman, MDVito Imbasciani, MDWilliam Averill, MDRichard Baker, MDPedram Salimpour, MD

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4 P H YS I C I A N M AG A Z I N E | JULY 2015

I am the newly elected president of the Los An-geles County Medical Association. I’m not a poli-cy expert, but I wish to convey my understanding of our present healthcare situation to stimulate discussion and set a common ground. It may be a bit wonkish, but I feel it is very important.

The American healthcare system is amazing. We have among the best medical schools in the world. Drs. Osler and Halstead at Johns Hopkins Hospital formulated the structure of the residen-cy program which persists to this day. We have among the best clinics in the world to which many international leaders come for advanced care.

However, we as physicians and the healthcare sector are facing the perfect storm. There is a confluence of economic and social currents that are creating great turmoil. Healthcare is expensive and the trajectory is worsening. In 2013, the U.S. spent $2.9 trillion on healthcare. Healthcare expen-ditures as a percentage of GDP stand at 18%, the highest of all developed nations. This has been rising for decades despite all previous attempts to control it. This is true in Europe as well, where there is a mixture of single payer, state and private insur-ance. The United States spends the most per capita.

Medicare and Medicaid ex-penditures have steadily risen since the mid-1960’s. Total gov-ernment sources account for 39% of direct healthcare dollars.

With the aging of the baby boomers, there will be an expected bump in spending. The elderly account for the highest average spending per person in healthcare. Current Medicare and Med-icaid spending accounts for 4.4% of GDP. This is expected to rise to 12% in 2050. Current medical expenditure for the federal government is 24% of budget. A threefold increase in spending by 2050 will far outweigh the expected increase in revenue, taking dollars from Defense, education, infrastructure, etc.

The increasing cost of healthcare has affected employers and employees as well. Total employ-er contribution to premiums has steadily risen, as have employee contributions. Worker contribu-tions have outpaced worker earnings fourfold. This has led to workers’ earnings only staying in pace with overall inflation. Employer costs have been an increasing loss to their bottom line.

With these rising costs, one would hope we as a nation have much better care than others. The data does not support this. Examining metrics of the beginning and end of life, we may compare ourselves with hard data. Our rising expenditures per capita have not led to markedly greater in-creases in life expectancy. We have the highest infant mortality among wealthy nations. Further-

more, there is great disparity in what we achieve along socioeconomic lines. Black, non-Hispanic infant mortality is still significantly higher in the 21st century. To quote Martin Luther King Jr.: “Of all the forms of inequality, injustice in health care is the most shocking and inhumane” (1966).

In 2008, Dr. John Wennberg of the Dartmouth Institute for Health Policy and Clinical Practice re-leased a white paper on improving quality and curbing healthcare spending. The authors dis-cussed “unwarranted geographic variation and uncontrolled health care spending.” Their con-clusions were to eliminate unneeded care and thereby reduce costs, improve quality and allow for the expansion of coverage. A white paper from Thomson Reuters in 2009 delineated six compo-nents of healthcare where $700 billion could be saved. Controlling unwarranted use could save $250 billion to $325 billion (of a healthcare bud-get of $2900 billion).

With such studies promoting the holy trinity of less cost, better efficiency and better quality, the Patient Protection and Affordable Care Act (Obamacare) was signed into law in 2010. Obam-acare had benefits popular to the general public and expanded coverage with subsidies gained from the purported cost savings. It encouraged physicians to align into accountable care orga-nizations (ACOs). They would expand EMR use and, by sharing payment risk, increase efficiency, lessen cost and increase quality.

While the Obamacare plan was rolling out, the SGR debacle was finally repealed. The SGR was an 18-year-old mechanism that never worked. As part of the bill, Medicare provider payment was “modernized.” Physicians will be paid under a Merit-based Incentive Payment Plan where the bottom 50% in quality metrics will pay a penalty of 9% to subsidize an increase payment of 9% to the upper 50%. If physicians join an ACO, they are not subject to this mechanism.

As physicians, where does this leave us now? One size does not fit all. Some may join a group or IPA in an ACO. There will be some loss of au-tonomy. Some may remain independent and spend money to make money with the risk of not making the upper 50%. Some may opt out of Medicare with probable exclusion from nar-row networks or possibly all networks. Some may move into concierge medicine, but it is limited to a patient population with high disposable in-come. Finally, some may retire.

Going forward, we can accept the status quo. However, we may alter Obamacare implementa-tion with active physician input. There are many areas of potential improvement. This will require diligent physician education and recruitment to leadership. We will have to educate our patients and the greater public, and we will have to work through the legislative process at all levels. It is a lot of work. But if we care about medicine, we must do it for ourselves and future physicians, and for our patients, including our families and taxpayers.

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The installation reception and dinner took place at the El Caballero Country Club and was presided over by outgoing president, Pedram Salimpour, MD. John Baackes, CEO of L.A. Care Health Plan, the nation’s largest publicly operated health plan serving more than 1.6 million members, was the keynote speaker.

Baackes spoke on the importance of delivering high-quality, high-value healthcare to his patient popu-lation, emphasizing his focus was on assuring his entire organization makes quality and value-based health-care a priority. Baackes further noted that healthcare is delivered locally, and as such, many of the issues facing medicine are influenced by the efforts of the local physician community. Baackes publicly recog-nized the contributions of LACMA member Thomas L. Horowitz, DO, who serves on the board of L.A. Care.

The program included a thank you to Dr. Salim-pour for his contributions during his yearlong presi-dential term. Most notably, LACMA membership increased during Dr. Salimpour’s term, making it the largest medical association in the state. Also, during the past year, LACMA actively engaged in a host of policy issues impacting the practice of medicine, such as the defeat of Proposition 46.

Dr. Richman focused his inaugural remarks on the overall state of healthcare in the U.S., noting: “There

is a confluence of economic and social currents that are creating great turmoil. Healthcare is expensive and the trajectory is worsening. In 2013, the U.S. spent $2.9 trillion on healthcare. Healthcare expendi-tures as a percentage of GDP stand at 18%, the high-est of all developed nations.”

Richman went on to note that “Our rising expen-ditures per capita have not led to markedly greater in-creases in life expectancy. We have the highest infant mortality among wealthy nations. Furthermore, there is great disparity in what we achieve along socioeco-nomic lines.”

Noting that studies have shown there is significant opportunity to reduce the overall coast of healthcare, Richman concluded with a call to action for physicians.

“There are many areas of potential improvement. This will require diligent physician education and re-cruitment to leadership. We will have to educate our patients and the greater public, and we will have to work through the legislative process at all levels. It is a lot of work. But if we care about medicine, we must do it for ourselves and future physicians, patients in-cluding our families and taxpayers.”

Dr. Richman received his medical degree from UCLA School of Medicine, where he was awarded the CIBA Award for Outstanding Community Service.

Renowned Surgeon Dr. Peter Richman Takes the Gavel as LACMA’s 144th PresidentMore than 200 LACMA physician members and guests assembled on June 24 for

the presidential installation of Dr. Peter Richman who will serve as the president

of the Los Angeles County Medical Association for the 2015-2016 year, and to

celebrate and honor the organization’s elected healthcare leaders.


Jeffrey Penso, MD, Glenna Tolbert, MD, Kelvin Tolbert and Robert Bitonte, MD.

Reo Carr, publisher of Physician Magazine and Physicians News Network, with Michael Kamiel, MD.

Top row photos, left to right:Outgoing LACMA president Dr. Pedram Salimpour passes the gavel to Dr. Richman.

The Richman Family, from left to right: Tess Richman, Peter Richman, MD, Marie Rich-man, Grant Richman

Grant Richman, Dr. Richman’s son, giving the invocation.

Clayton Patchett, MD, right, swearing in LACMA 2015-16 officers: (l to r) Dr. Peter Richman; Vito Imbasciani, MD, President-elect; William Averill, MD, Treasurer; and Richard Baker, Secretary.

Dr. Richman delivering his remarks.

The evening’s keynote speaker, John Baackes, CEO of L.A. Care Health Plan.

Stephanie Hall, MD, Oscar Autelli, and Gregory Taylor, MD.

He completed his residency in General Surgery at Los Angeles County Harbor UCLA Medical Center and is a member of the American College of Surgeons.

In 2012, Dr. Richman received the Top Doctor Award from Castle Connelly, a healthcare research and information company identifying excellent doctors in regions throughout the nation.

Dr. Richman also serves on the Community Board of Directors for Facey Medical Foundation and Prov-idence Health Services. He is also a Trustee of the California Medical Association.

It was a highly successful and engaging evening, thanks in large part to event Platinum Sponsors Coop-erative of American Physicians, The Doctors Company, NORCAL Mutual, Facey Medical Group and Anthem Blue Cross; Gold Sponsor Mercer; and Verizon, who provided Dr. Richman with a Samsung Galaxy S6. Dr. Richman with James Moore, MD, and Karen Sibert, MD,

of the California Society of Anesthesiologists.

Legal Risks for

Physicians in today’s healthcare climate

BY BENJAMIN FENTON | FENTON LAW GROUP


MalpracticeThere is no question that malpractice lawsuits pose the largest ongoing risk to physicians. While in

many instances there is nothing a doctor can do to prevent a malpractice case, there are some measures that a physician can take to help minimize the likelihood of these lawsuits. One of the more obvious safety measures is to maintain clear, detailed and legible medical records of any particular case. There is an axiom that if something is not documented in medical records, then it is as if it did not occur. For purposes of malpractice lawsuits, lack of documentation of an event will call into question whether it oc-curred. A skilled plaintiff’s attorney will be able to take full advantage of mistakes or omissions in a physician’s medical records to imply the worst possible scenario. If a doctor has any doubt whether to document an appar-ent event or point of information, then it is better to err on the side of over-documentation.

It is equally important to document unusual circum-stances or events in a case. Any unusual event could potentially lead to legal action and should be well documented. Finally, any time a physician adds to or amends a patient record, the date of the amendment and the fact that the amendment occurred should be noted clearly in the record to avoid any claim that a phy-sician is trying to misrepresent when an amendment oc-curred.

While thoroughness of medical records can provide physicians with important defenses in malprac-tice matters, less clinical aspects of care can help minimize the likelihood of malpractice suits as well. Not surprisingly, a patient’s “experience” with a particular physician or practice can influence or avert the filing of a suit. Factors like pleasant bedside manner and friendly and professional support staff will have a positive impact on the patient’s overall experience and will decrease the likelihood that the pa-tient is displeased with the care provided. Even expressions of sympathy or compassion to patients by a physician cannot be used to show any liability on behalf of the physician under the California Evidence Code. The idea is that physicians should not worry that expressions of sympathy or compassion towards a patient will later be used against the physician.

In today’s business and legal landscape, there

are a number of potential pitfalls all physicians

should be aware of. More than in any other pro-

fession, potential legal issues or problems can

arise in almost all aspects of physician prac-

tice. Here, we cover some common legal issues

and problems affecting physician practices.

If a doctor has any doubt whether to document an appar-ent event or point of informa-tion, then it is better to err on the side of over-documentation.

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Potential Issues with Employees A second potential area involving legal pitfalls for physicians is the management of employees in the

medical practice. A number of statutes in California specifically protect employees in healthcare settings who complain about issues relating to patient care or safety. If an employee is terminated for speaking out regarding patient care or a safety issue, a claim could be made that the termination was in retaliation for that employee’s advocacy. If any employee makes a complaint regarding patient safety, that com-plaint should be investigated.

In addition to statutes specifically related to healthcare practices, physician practices are as suscep-tible to unlawful discrimination lawsuits as any other business. To avoid allegations of discrimination or harassment, a practice should always maintain a high degree of professionalism. The management

of the practice should not tolerate harassment or discrimination by any employed individuals, even if it is intended to be a joke. Certainly, if an employee complains regarding harassment or discrimination, the prac-tice should take that complaint seriously and investigate its legitimacy. Physicians need to also be familiar with the labor commissioner rules gov-erning employee hours, overtime pay, and timeliness of final payments to employees after separation. But for a few exceptions, employees must receive their payment of final wages within 72 hours of separation from the medical practice. Delays in paying final wages can result in fines and penalties to the employer.

One way to avoid the headache of potential legal issues with depart-ing employees is to offer severance pay in exchange for a “release of claims.” An employee may be willing to release the employer from all claims he or she may have in return for a severance payment following the termination or resignation. This is often a win-win for both the employee and medical group.

On the other side of the coin are the many physicians who choose to practice as employees within medical groups. Any employment agree-ment between a physician and his or her employer should be in writing and clearly state the agreed upon terms. A physician who is entering into

an employment agreement with a medical group should diligently review the agreement (often with the help of an attorney) for fairness and for adequate protections to the physician. Areas to focus in on when reviewing an employment agreement include the termination or resignation section, the compensation structure and the scope of malpractice liability.

Prohibition against the Corporate Practice of Medicine Regulatory bodies continue to enforce violations of the ban on the corporate practice of medicine.

The prohibition against the corporate practice of medicine requires a physician to have control over all decisions (medical or business) made in the medical practice. These decisions should not be left in the hands of a layperson. This includes the hiring and firing of physician extenders (typically, nurse practitio-ners and physician assistants), the purchasing of medical equipment and any agreements entered into between the medical practice and third-party payors. A layperson manager or management company is prohibited from engaging in decision-making regarding medical or business aspects of the medical practice. These decisions are solely within the purview of a physician owner.

Financial Interest Disclosures Medical practices should ensure that they have up-to-date and compliant business disclosures. Any

In addition to statutes specifically related to healthcare, physician

practices are as suscep-tible to unlawful dis-crimination lawsuits

as any other business.


physician who refers to or seeks a consulta-tion from any organization in which the physi-cian or a family member has a financial inter-est must disclose this in writing to patients (or the parent or guardian of a patient) at the time of referral. In some cases, though not all, the disclosure rule can be met by posting a conspicuous disclosure statement in the wait-ing room.

In-Office Dispensing of DrugsMore and more physician offices are dispensing drugs in offices. Physician practices that do dispense

drugs must comply with specific patient disclosure requirements that include notification to the patient that they may obtain the prescription from a pharmacy of the patient’s choice, i.e., not necessarily from the medical practice, and to offer to provide a written prescription that the patient may elect to have filled by any pharmacy. These disclosures, which are found primarily in California Business and Professions Code section 4170 et seq., are intended to inform patients that they are free to fill any drug in an outside pharmacy as opposed to in a physician’s office.

Patient Assignment of Benefits For those out-of-network providers who provide ser-

vices to insured or managed care patients, an assignment of benefit form executed by the patient is required to transfer to the physician any rights or benefits the patient has under his or her health insurance or managed care contract. The purpose to assigning benefits is so that the physician can receive payment directly from the insurer. Unfortunately, it is becoming increasingly common for in-surance companies to refuse to comply with assignment of benefit forms and issue payments to the insured patient rather than to the physician. This puts the physician in the difficult and uncomfortable position of trying to collect debts from patients.

The above is a snapshot of some of the business and legal issues physicians deal with on a day to day basis. Of course, as the business and legal landscape of medicine changes, so do potential issues facing providers. It is im-portant for physicians to remain vigilant with respect to complying with employment and regulatory rules govern-ing their practice to avoid potential legal pitfalls.

Benjamin J. Fenton is a litigator with significant trial and appellate experi-ence. He regularly advises and represents healthcare providers and entities in healthcare business disputes, hospital peer review actions, and state and fed-eral administrative actions and investigations. Ben regularly represents physi-cians and other healthcare providers before the Medical Board of California, the Osteopathic Medical Board, the Board of Registered Nursing, and other healing arts licensing agencies. Ben has extensive experience representing healthcare providers in Medicare and Medi-Cal disputes, such as overpay-ment demands, terminations or suspensions, and audits and investigations. Ben also regularly litigates business disputes in court, representing physicians and medical groups both as plaintiffs and defendants. He also represents healthcare providers in the defense of RICO, False Claims Act and Fraud and Abuse litigation.

Assisting physicians with legal issues for over three decades.

Fenton Law Group, LLP1990 South Bundy DriveSuite 777Los Angeles, CA 90025 310.444.5244

www.fentonlawgroup.com

M E D I C A L B O A R D H O S P I T A L S T A F F F R A U D / A B U S E M E D I - C A L / M E D I C A R EMEDICAL PRACTICE PURCHASES, SALES AND MERGERS

The brand physicians trust

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It is important for physi-cians to remain vigilant with respect to complying

with employment and regulatory rules govern-ing their practice to avoid

potential legal pitfalls.


Surviving a Peer Review InvestigationANTHONY HUNTER SCHIFF, J.D., M.P.H.

Every year, thousands of peer review inquiries are conducted by medical staffs

in California hospitals. The vast majority are routine and end after a brief

amount of review. However, a small number raise significant concerns and trig-

ger potentially career-ending investigations. How the subject physician reacts,

prepares and cooperates with the peer review process significantly influences

the ultimate outcome of the investigation. This article explores how the sub-

ject physician should respond to a peer review investigation.


While a resignation

makes the pending

investigation moot,

the resignation

automatically trig-

gers a Business and

Professions Section

805 report to the

Medical Board of

California (“MBC”)

and the National

Practitioner Data

Bank (“NPDB”) as

required by law.

How Did This Happen to Me?The Joint Commission’s ongoing professional

practice evaluation (“OPPE”) initiative now requires constant monitoring and the collection of clinical data on all practitioners. OPPE requires the medi-cal staff to factor and evaluate data “into the deci-sion to maintain existing privilege(s), to revise existing privilege(s), or to revoke an existing privilege prior to or at the time of renewal.” As a result, all physicians who utilize hospital facilities are now routinely sub-ject to far more review than ever before. Some phy-sicians identified by OPPE as providing patient care which might indicate quality of care issues will be required to participate in focused professional prac-tice evaluation (“FPPE”).

It is the responsibility of the medical staff to define the circumstances requiring OPPE and FPPE monitor-ing and evaluation of a practitioner’s professional per-formance. The information and data collected typi-cally include traditional sources of peer review data. For example, medical records sometime “fall out.” This can be due to complications and are often identi-fied by infections, excessive blood or pharmaceutical use or excessive operating room, time or excessive length of stay. Inappropriate use of consultants also can raise a red flag.

The trigger for peer review can be a single incident or evidence of a clinical practice trend. Of course, morbidity and mortality data are reviewed. In other instances, incident reports are filed by staff, frequent-ly by nurses. In other instances, either an involved physician or a patient may complain. Malpractice ac-tions reported to the Medical Board also become the subject of an inquiry. Finally, reviews are conducted after a significant adverse event.

What Specific Areas of Concern Does the Medical Staff Investigate?

Based on complaints or collected data, medical staff committees most frequently focus on issues of medical judgment, fund of knowledge, medical ne-cessity or skill, particularly surgical skill. From time to time, they also investigate ethical issues involving dishonesty and/or conviction of a crime, or exclu-sions from a federal program, e.g., Medicare.

While medical staff committees strive to be objec-tive, how familiar the medical staff is with the sub-ject physician may influence whether the peer review process briefly reviews a concern or whether the mat-ter becomes a formal investigation. In this regard, if a physician is new to the medical staff, or if the physician rarely uses the hospital it is my experience that the subject physician is more likely to be subject to a formal investigation. For example, if a physician has done only three surgeries in a hospital, and there is a problematic case, then it is 33% of his/her surgi-cal cases.

What Is the Peer Review Process?When a medical staff committee determines that

a patient record should be formally reviewed, prior to the formal investigation stage, a committee chair may talk to the subject physician. In other instances, the committee will request an interview with the subject physician. Other times, a physician will first be re-quested to provide a written response before he/she appears before the committee. How the subject phy-sician responds at this point is critical.

If the matter is deemed serious, and a formal in-vestigation is going to be undertaken, the medical staff bylaws require that a formal notice of investigation be given to the subject physician. Either the department or the medical executive committee (“MEC”) is em-powered to create an ad hoc committee to conduct an investigation. A significant number of peer review inquiries needlessly become formal investigations as a result of the subject physician’s being inadequately prepared at an earlier stage of review, and as a con-sequence, he/she makes statements that can be inac-curate or at variance with the medical record. Such errors, if material, can trigger the formation of an ad hoc committee by the department chair or are directly referred to the MEC. Most physicians have little or no experience in preparing and responding to committee questions and frequently make the critical mistake of assuming that they will give a brief explanation and answer a few questions based solely upon their recol-lection of the medical record.

Often, the physician is interviewed by the ad hoc committee. Sometimes, questions are prepared in advance by the ad hoc committee or an outside ex-pert. For the subject physician, preparation for such interviews is critical. In my experience, most physi-cians choose to represent themselves at this stage of the medical staff process and sometimes fail to grasp the gravamen of the ad hoc committee’s inquiry. In addition, physicians sometimes believe they can avoid this process by simply resigning from the medical staff. While a resignation makes the pending investigation moot, the resignation automatically triggers a Busi-ness and Professions Section 805 report to the Medical Board of California (“MBC”) and the National Practi-tioner Data Bank (“NPDB”) as required by law.

After the ad hoc committee has reviewed the sa-lient medical records, obtained information from the subject physician, and perhaps spoken to its own ex-pert, the ad hoc committee should prepare a written report. The report should contain factual findings, conclusions and recommendations. Ultimately, the MEC will review the report and decide what actions, if any, it believes should be taken against the subject physician’s privileges and/or membership.

If the MEC determines that it will recommend an action that limits or revokes the subject physician’s membership and/or privileges, i.e., a corrective ac-

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tion, then pursuant to state law and the medical staff bylaws, a notice must be given to the phy-sician of such recommended ac-tion. If the physician requests a formal hearing, he/she is entitled to receive a notice of charges that identifies the involved medi-cal record(s) and, the charges that have led the MEC to take the recommended action. Typically, the subject physician is also pro-vided with a copy of the medical staff bylaws.

The majority of disciplinary actions consist of a recommended action that does not go into effect until after the physician has had a hearing or waived his/her right to a hearing. However, in instances where the MEC believes that there is an immediate threat to patient or personnel safety, then summary suspension or restriction on part or all of the physician’s privi-leges is imposed. If the summary suspension is not lifted within 14 days, then the summary suspension becomes reportable to the MBC and, after a total of 30 days, to the NPDB.

If You Are the Subject Physician, What Should You Do?

First, the subject physician who receives a recom-mended action/summary suspension should take the matter very seriously. Second, the subject physician should obtain a copy of the medical records and re-view the hearing rights section in the bylaws. Third, if the subject physician has not already done so, he/she should obtain qualified legal representation. If a notice of charges has not yet been provided, before requesting the notice of charges, the subject physi-cian should first meet with counsel.

Counsel may recommend that the subject physi-cian ask a partner or colleague to review the medi-cal records with counsel, along with the notice of charges. If an expert review is required, the expert should be retained by counsel in order to be covered by attorney work product doctrine. In some circum-stances, counsel may recommend that the physician attempt to meet informally with medical staff lead-ers and/or the MEC to discuss the matter with a view toward attempting to resolve the matter without the necessity of a formal judicial hearing.

While a discussion of how to prepare for and con-duct a judicial review hearing is beyond the scope of this article, it is obvious that the subject physician should make every effort to avoid a hearing in the first place. Requesting and pursuing a hearing should not be done without advice and careful consideration. A medical staff hearing can be just as complex (and expensive) as a civil trial, in court and if the MEC pre-vails in the hearing, the decision must be reported

to the MBC pursuant to Section 805 and to the NPDB. Further, pursuant to Section 805.5, the MBC then has a right to obtain a transcript of the judicial review committee hearing and any evi-dence that was introduced by ei-ther side during that proceeding. The MBC will review such mate-rial and then determine whether it will initiate a licensure action against the subject physician.

As such, the subject physician should carefully dis-cuss with counsel whether or not it is advisable to go through the hearing process.

ConclusionIn summary, the subject physician should proceed

cautiously when he/she receives notice of any medical staff inquiry. All medical staff investigations, no matter how simple they appear, or how informally they may be presented, may ultimately lead to adverse actions that are reported to the MBC. The subject physician should never “shoot from the hip,” but should always first study the medical record in detail before respond-ing to an investigating committee. Where appropriate, the subject physician should also review the salient medical literature to gain additional insight about par-ticular medical issues. If the matter appears to be seri-ous, the subject physician should consider engaging qualified counsel at an early stage of the proceeding. Counsel should be used to review the likely medical issues and help the subject physician prepare a cogent response, with reference to the facts contained in the medical record, and possibly to the medical literature, that supports the subject physician’s actions.

Finally, all physicians should recognize the duty of the medical staff to review and investigate peer review matters. The medical staff is responsible to conduct an adequate and fair investigatory process. Where warranted, the medical staff must undertake investigations and take actions. Physicians have fought hard to have self-governing medical staffs that conduct peer review at the local level. As such, phy-sicians should participate in and support good-faith peer review.

Anthony Hunter Schiff, J.D., M.P.H. is a Professor (Adjunct) in the Department of Health Policy and Management, Fielding School of Public Health, UCLA. He is also a partner in Schiff and Bernstein, A Professional Corporation, Los Angeles

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1. See Joint Commission Standard, MS.08.01.03, Comprehensive Accreditation Manual for Hospitals: The Official Handbook.2. See Joint Commission Standard, MS.08.01.01, Comprehensive Accreditation Manual for Hospitals: The Official Handbook.3. Ibid.4. See California Business and Professions Code Section 809, et seq.5. A request for notices of charges may start the procedural process and cause procedural time periods to begin to elapse.6. See California Business and Professions Code Section 805.7. See California Business and Professions Code Section 805.5.

A medical staff hearing can be just as complex (and ex-pensive) as a civil trial in court, and if the MEC pre-vails in the hearing, the de-cision must be reported to the MBC pursuant to Sec-tion 805 and to the NPDB.


As with conventional medicine, a telehealth and video caregiver must uphold the same duties to safeguard a patient’s medical re-cord and keep their treatments confidential. In addition, storage of electronic documents, pictures, audio / video recordings. etc., must uphold the same precaution and care credited to paper documents.

The issues regarding privacy and confidentiality in the medical field are not necessarily any different in an “electronic” environ-ment. Some patients might feel skeptical about the use of or the idea of video with its lack of visual prompts or cues. First and fore-most, verify that the services that you agree to use have received a HITECH certification, is HIPAA compliant and that you have a cur-rent BAA (business associate agreement) and current signed pa-tient/provider agreement for telehealth and video. Acknowledge and respect a possibility of cultural diversity; set ground rules up front; watch for facial expressions, gestures and body language. If your gut instinct tells you to offer the patient a true face-to-face of-fice visit – then go with your gut instinct.

Additionally, fears about the reliability, the technology and the potential devastation of a loss of their protected health information (PHI) may leave some patients distrustful of telehealth. As with any un-encrypted PHI, when “video” travels over the “public switched telephone network (PSTN)” without encryption, the opportunity for hacking and/or breaches exists. Using a dedicated and HIPAA se-cure encrypted service and network and up-to-date computer virus security software may reduce the opportunity of hacking attempts and potential breaches.

Some of these concerns with technology or services may be ad-dressed through a combination of technical and security measures such as the enforcement of the privacy rule within the Health Insur-ance Portability & Accountability Act of 1996 (HIPAA), California AB-415 and other items addressed below.

Certain video services such as Skype have known issues with se-

curity and privacy – at this time, this particular service fails to offer a business associate agreement (BAA) “which upholds the HIPAA privacy rules” and has failed to receive any HIPAA security certifica-tions. The failure to have HIPAA / security measures in place opens the opportunities for HIPAA breaches. Using Skype has its vulner-abilities as mentioned above—its lack of HIPAA and BAA certification / compliance opens up a possibility of a breach. The HIPAA privacy rule specifies “Protected Health Information (PHI) means ‘individu-ally identifiable health information – transmit-ted by electronic media; maintained in electronic media; or transmitted or maintained in any other form or medium’” and therefore must be in com-pliance with the privacy rules: https://www.fed-eralregister.gov/. At pres-ent, several HIPAA secure videoconference services are available. It is recom-mended that the physician or administrator quality check each ser-vice prior to entering into any contract and securing a BAA.

Caution and security should be paramount when contemplat-ing any telehealth services. It is recommended that all physicians and office managers do their homework prior to entering into any new ventures, contracting, etc. Become familiar with the HIPAA privacy rule, institute a quality check program for all BAAs and, acquaint your practice with all applicable local, county, state and federal requirements that may affect patients’ privacy and open a practice to possible breaches.

Telemedicine & HIPAA – What Physicians’ Offices Need to Know to Be CompliantBY ALLAN RIDINGS, SENIOR RISK MANAGER & PATIENT SAFETY SPECIALIST | COOPERATIVE OF AMERICAN PHYSICIANS, INC.

When reviewing telehealth for use in medical environments, things to address are: • HIPAA Privacy Rules• Notice of Privacy Practices• Business Associate Agreement• Assembly Bill 415 (AB-415)

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CEO’s LETTER

S U M M E R I S F I N A L L Y H E R E and we’re all looking forward to the longer, sunnier daytime hours.

At LACMA, July, of course, is always a pivotal time of change in our leadership, and I’m honored to present our new president—LACMA’s 144th president, Dr. Peter Richman.

I am looking forward to working with Dr. Richman as well as the newly installed officers, brought to you during our special “Installation of President and Officers” dinner on June 24 at the El Caballero Country Club.

Dr. Richman is a renowned surgeon in Mission Hills and affiliated with multiple hospitals in the area. He has been a long-time member of the Los Angeles County medical community. He attended the UCLA Geffen School of Medicine and com-pleted his internship and residency at Harbor UCLA Medical Center. He is very familiar with the concerns of local physicians and as LACMA’s new president will provide understanding and a voice for all.

I also want to take this opportunity to thank LACMA’s outgoing president, Dr. Pedram Salimpour, for his outstanding leadership and for taking our organization to new heights.

To name a few of his accomplishments, Dr. Salimpour devoted his energy and time tackling major issues, including MICRA, heightened the status and profile of our organization in the media and the public eye, inspired the next generation of doctors, and was instrumental in increasing LACMA’s membership numbers, mak-ing LACMA stronger and more united than ever before.

I also would like to give thanks to Cedars-Sinai Medical Center. Last month, I had the honor to accept the invitation by Dr. Leo Gordon, Co-

ordinator of Great Debates in Clinical Medicine at Cedars-Sinai Medical Center, to serve as one of five judges in a formal medical debate about a timely topic in medicine.

The Dr. Leon Morgenstern Great Debates in Clinical Resident Competition, named in honor of the late Dr. Morgenstern, who was the chair of the Department of Sur-gery for 30 years, is one of the key events in the Los Angeles County medical community.

This June, some 300 physicians of all ages attended the Cedars-Sinai debate about “Can fee-for-service medicine survive--should it change or should it continue?”

With summer being here, I hope that many of you will spend some quality time with your families. Taking some time off may just be the best medicine to re-energize.

Regards,

Rocky DelgadilloChief Executive Officer

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