How To Get Arrested Without Really Trying

A few months ago, a Florida dentist found himself sitting in the back of a police car in handcuffs facing felony charges.  The State accused him of using an unlicensed person to provide dental hygiene services to 71 Medicaid patients.  He could receive 15 years in prison and a fine of $30,000.  His attorney argues that the dentist is innocent because he did not know that his employee was unlicensed.  In North Carolina, he would not get very far with that defense.

In 1998, our state’s Dental Board suspended a dentist’s license because he had hired an unlicensed dentist.  He argued that he reasonably thought the man he had hired was licensed.  He pointed out that no one suffered any harm at the hands of the unlicensed dentist.  Finally, he stated that traditionally, North Carolina law requires intent to violate the law as a condition of imposing criminal sanctions. 

The North Carolina Court of Appeals disagreed.  It held that the Dental Practice Act is designed to protect the public welfare.  It ruled that in such cases, the Board does not need to prove that the defendant intended to violate the law.  It is up to the dentist to verify the licensure status of all employees required by law to be licensed.

Failing to check the licensure status of potential employees, partners, and agents can also trigger civil liability.  A 2008 New York case involved claims against a man who allegedly provided dental care to patients in his wife’s dental office after hours.  The plaintiff claimed that this unlicensed person had permanently damaged his teeth.  He argued that the man had breached his implied contract to properly treat the damaged teeth.  

Had the fake dentist been licensed, he would have been protected by a New York law outlawing breach of contract claims against physicians or dentists unless those claims are based on “a special promise to effect a cure.” Since he was not licensed, the laws designed to protect dentists from such lawsuits did not protect him.

The North Carolina Legislature has enacted similar laws to protect health care providers from lawsuits.  For example, to be enforceable, any doctor’s promise of a cure must be in writing.  Before filing suit against a doctor, the patient must obtain an expert witness who states that the doctor failed to provide appropriate care.  That witness must meet stringent statutory requirements.  Finally, the legislature has limited the amount of damages available in malpractice cases.  If North Carolina follows the rationale of the New York case, those protections may not be available if the provider does not hold a current license.  This could seriously impact the provider’s employer or partners.

Finally, most malpractice policies only insure for actions carried out by licensed providers.  It is entirely possible that an insurer would refuse to pay damages awarded in cases where the provider does not have a current license.

Licensing agencies make it simple and quick for anyone to check the licensure status of a health care provider.  Generally, the information can be checked on-line in a matter of minutes.  It is important to verify licensure prior to hiring a new employee.  As most health care providers must regularly renew their licenses, it is also important for employers to routinely update the licensure status of employees.

While it may seem like a lot of trouble to remember to check licenses of employees, I’m sure the Florida dentist wishes he had taken the time to check out the hygienist before he hired her.  It may be that the dentist will soon have a lot of time on his hands to check things out.

Dangers of Patient Questionnaires

A young man out partying with his friends has too much to drink. Leaving the party, he wrecks his truck. An ambulance picks him up.  At the hospital, routine tests show that he is drunk. Doctors put him in the hallway to die. Fact or fiction? Just ask Mr. Thompson.

On his first visit to a Florida health clinic, the staff required Mr. Thompson to watch a video and complete a new patient questionnaire. Three questions dealt with alcohol use.  The first asked how often in the past year he had a drink containing alcohol. The second question asked how many drinks containing alcohol were consumed "on a typical day" in the past year. The third question asked how often 6 or more drinks were consumed on "one occasion" in the past year.

Mr. Thompson came to the clinic in March of 2009. It isn't clear whether the term "year" in all three questions referred to 2009, 2008, or whether it meant in the past 365 days. In any case, very few people record each alcoholic drink consumed. Obviously, someone who never drinks can easily answer such questions. Or a person with an obsessive compulsive disorder might be able to respond accurately. Otherwise the only honest answer to the question would be "unknown."

None of the questions asks about the type of alcohol, the amount of alcohol in the drink, or the size of the drink. Should the patient include the number of times he has taken communion with watered-down wine? Is there a significant difference between a drink of O'Doul's beer and a jar of grain alcohol? What if the patient took a sip of grain alcohol and didn't like it? Is that a "drink"? Do you include the day you got a notice of an IRS audit as a "typical day"? What if you're always in trouble with the IRS? What is an "occasion"? Some celebrations can last several days.

When presented with vague questions like these, the patient has few choices. First, he can try to answer truthfully by saying, "I don't know." I tried this option when my physician's questionnaire asked obscure questions about my grandmothers' health. I didn't know the answers to most of those questions; however, "I don't know" wasn't a choice. I asked the receptionist what to do about those questions. She told me to "do the best you can." She also said that the doctor wouldn't see me if I didn't answer every question.

The second option - and the one chosen by Mr. Thompson - was to guess at the meaning of the questions and answer as well as he could. The result was catastrophic. His attending physician determined that, "as per VA outline criteria" more than 14 drinks per week "constitutes alcoholism." Because Mr. Thompson admitted to 3-4 "drinks" a day, the doctor labeled him an "alcoholic." Since alcohol can adversely impact Mr. Thompson's pain medications, the doctor revised those prescriptions. Disputing the diagnosis, Mr. Thompson filed suit.

Defendants offered no evidence that Mr. Thompson had experienced any legal problems related to his "drinking." There were no arrests for drunk driving, public drunkenness, or any other behavior related to drinking. In fact there is no reported history of any criminal behavior at all. We also have no record of Mr. Thompson's employment history. Has he ever lost a job because of alcohol-related behavior? Was he a reliable employee or did he have a history of chronic absenteeism? There was no evidence that alcohol had impacted his social relationships. Did his wife divorce him because of his drinking? Did he loose custody or visitation rights with his children because of his "alcoholism"? Was he ever injured in an accident where alcohol was a factor? Finally, there is no indication of physical or mental problems often seen in alcoholic patients. There is no report of liver disease, hypoglycemia, hypertension, brain damage, heart damage, chronic gastritis, or pancreatitis. There is no record of blackouts, hallucinations, or cravings for alcohol. Despite the shoddy diagnostic criteria relied upon by his doctor, the court refused to strike the "alcoholic" label from Mr. Thompson's records.

A few weeks ago, the CDC strongly urged physicians to begin screening patients for potential alcohol problems. It acknowledged that, "Doctors are busy and have lots of things to do" but it urged doctors to begin screening every patient for alcoholism.

Doctors should ignore this advice until the CDC provides them with reliable screening tools. Labeling a patient as an "alcoholic" can have severe consequences. Employers can fire "alcoholics." Licensing boards can take away professional licenses of substance abusers. Judges have taken away children and have terminated visitation rights in cases involving claims of a parent's alcoholism. Courts have even allowed health insurance companies to refuse to pay for medical care of a patient who was injured when "intoxicated." Finally, many doctors would refuse to consider an "alcoholic" for a life-saving liver transplant.

Patients faced with obscure, invasive, and potentially dangerous questions on doctor's surveys should also realize that their answers will be permanently stored in an electronic data base. Without the patient's knowledge or consent, the law allows that record to be shared with other health care providers, law enforcement, and certain government authorities. In addition, hackers routinely steal information from "confidential" data bases. Just ask the National Security Agency, Target, and Edward Snowden.

As for me, when threatened with denial of medical care, I decided to provide safe answers to my doctor's questions. According to my survey, neither I nor my parents, grandparents or other ancestors have ever had any diseases or mental disorders. In fact, I have always led a happy, joyful life. I'm not a suspicious person and rarely find fault in anyone. I've never had a drink of alcohol nor smoked a cigarette. I've had sex only three times and that was with my husband, the father of my three children. (This may account for the divorce after 28 years of marriage.) I brush and floss three times a day and I get 8 hours of sleep each night. I meditate and exercise regularly and only eat organic foods. Finally, I have no idea how I got this horrible rash. Now may I see the doctor?

HIPAA And The Dangerous Flea Bargain

Years ago, I represented a young man who had lost his job. “Idle hands” being “the devil’s workshop”, he got into drug trafficking while our case was pending.  In the process, he accidentally blew up a car stuffed with cocaine.  Reporting the fiasco to me, he jubilantly told me not to worry as he had worked out a great “flea bargain” with the “feds.”

Negotiated settlements can be the best way out of a legal problem.  They are especially beneficial when a Board such as the Psychology or Medical Board threatens a health care provider with the loss of a professional license.  Often these Boards will allow the provider to keep his license if the licensee pays a small fine and gets additional training.   But sometimes settlements, like my client’s car, can blow up on you.  Take the case of a Virginia psychiatrist accused of violating a patient’s privacy. 

In September of 2007, Dr. Jones* began treating a female highway patrol officer who had been beaten, kidnapped and raped by three men.  Although he diagnosed her with post traumatic stress disorder, he wrote that she was “not a danger to the public.”

Later that year, the patient filed a complaint with the doctor’s employer about his behavior.  Shortly after receiving her complaint, Dr. Jones’ employer fired him.

On January 30, 2008, other physicians had the trooper involuntarily committed to a mental health facility.  The facility discharged her on February 1, 2008.  Dr. Jones heard rumors about the trooper’s hospitalization.  On February 4, 2008, he contacted “a friend” and “co-worker” of the trooper and told her about the involuntary commitment.  He made a second call on February 7, 2008 to another of the trooper’s “co-workers”.  He again reported that the trooper had been involuntarily committed to a mental health facility. 

Based on Dr. Jones’ reports, the Highway Patrol suspended the trooper.  However, once the Patrol’s doctor found her to be “fit for duty”, the Patrol sent her back to work. 

When the Virginia Medical Board learned of Dr. Jones’ disclosures, it prosecuted him for violating state confidentiality laws.  An “informal” conference took place.  Such conferences often allow the Board and licensee to negotiate licensure issues.  The Board found that, “Despite direct and repeated questioning,” Dr. Jones could not “justify” violating the trooper’s privacy.  His only reason for calling her friends was that he was worried because she had a gun.  The Board fined Dr. Jones $5,000 and ordered him to take 8 hours of training in ethics.  Dr. Jones did not appeal the ruling.  He must have been very relieved to keep his license.  His relief would be short-lived. 

In 2011, the US Justice Department filed criminal charges against the doctor for violating HIPAA.  Prosecutors argued that his discussions with the troopers’ co-workers were in retaliation for her complaints against him.  Surprisingly, after the prosecution presented its case, a federal judge dismissed the charges.

HIPAA allows health care providers to release information that is:

1.       Necessary to prevent a “serious and imminent threat” to others IF

2.      The threat is made to a person reasonably able to lessen the threat – this may include law enforcement, family members, the target of the threat, or others.

So what can we learn from Dr. Jones’ case?

1.      When deciding whether to accept punishment offered by a licensing board, it’s important to consider the possibility of a subsequent federal charge related to the case.  It is likely that the HIPAA police relied in part on the Virginia Medical Board order when deciding whether to prosecute Dr. Jones.

2.      Credibility issues arise when a defendant’s words contradict earlier written statements.  Dr. Jones claimed that the patient was a threat after he wrote in her medical record that she was NOT a threat. 

3.      It’s important to report threats to the proper person.  Dr. Jones should have expressed his concerns to the trooper’s immediate supervisor, not to her “friends.”

4.      Only witnesses with first-hand knowledge of a threat should report it.  The doctors who committed the trooper were in the best position to evaluate her mental health and were the appropriate persons to report any threat that she posed.

5.      You should be sure that you have accurate information before filing any report.     Because Dr. Jones did not have complete or accurate information about the trooper’s commitment, the report he gave was based on rumors and was in error. 

While I’m sure that Dr. Jones was thrilled to avoid jail time, he was probably less joyous about paying thousands of dollars in attorney fees, enduring the negative nationwide publicity, and spending three years of his life defending the charges related to this incident.  The only good to come out of the case may be the many lessons it offers concerning HIPAA compliance.

*Dr. Jones is not this defendant’s real name.

The Best Predictor of Future Behavior

Since the beginning of time, man has tried to predict the future.  Wise men studied the stars to determine the best time to plant crops.  Soothsayers warned kings of events that could threaten their empires.  Today, ecologists predict a catastrophic global warming of our planet.  The tools of the trade run the gamut from delicate scientific measurements of carbon in ice cores to chicken entrails. 

Most licensed professionals sell knowledge of the future to their clients, patients, and consumers.  Your attorney draws up contracts that he predicts will protect you.  Your physician predicts the course of your illness.  The pharmacist tells you how certain drugs will affect your mind and body.  Psychologists administer tests, conduct interviews, and perform assessments in order to predict human behavior.

In my experience, the best predictor of future behavior is past behavior.  This is a lesson a couple of psychologists learned the hard way.

A young woman began therapy with Dr. Land in 1993.  The doctor determined that her patient suffered from alcoholism, family discord, boundary issues, depression, post-traumatic stress disorder, gender issues, fits of violence, and repercussions from sexual abuse.  Dr. Land admitted her patient to a hospital.  Within one week of the patient’s discharge, Dr. Land terminated her doctor/patient relationship with the patient and began an affair with her.  The affair was short-lived.  Dr. Land stated that there were problems with the patient’s drinking, fits of violence and other emotional issues.  Sound familiar?  The psychology board revoked Dr. Land’s license because she violated the ethical prohibition on having sex with a client or former client. 

In another case, a psychologist treated a patient who had a history of severe difficulties in employment relationships.  Confident that 18 months of therapy had cured his patient of these problems, the doctor released her from his care and hired her to work as his office manager.  Surprisingly the employer-employee relationship didn’t quite work out.  One morning, shortly after she reported for work, the doctor fired the former patient but asked her to finish out the day.  Mid-afternoon, the doctor heard a noise and, turning around, saw this lady lunging at him with a pair of scissors.  Fortunately, he was able to wrestle the scissors away from her and escape injury. 

With 20/20 hindsight, we can identify numerous poor choices that the doctor made.  First, by hiring someone with a documented history of problems on the job, he ignored the patient’s past behavior.  Second, he hired a patient immediately after terminating her therapy.   Doing so violated ethical prohibitions of entering into dual relationships with patients and former patients.  Third, he did not escort the patient away from the office when he fired her.  This gave a very angry former employee the opportunity to cause irreparable damage at work.

 

Predictably, the patient filed a complaint with the state Psychology Board.  She maintained that she wasn’t trying to hurt the doctor with the scissors.  She said she noticed that he was talking on a phone that didn’t work.  To resolve the issue, she was going to cut the phone cord.  She testified, “I guess he thought I was going to stab him . . . we got into a little altercation.  He nearly broke my arm.”  She further stated that she was angry because everyone in the office was conspiring against her to “drive me insane to the point where I would be mentally unable to testify against them.”

The Psychology Board found the patient to be a credible witness and, based on her testimony, it suspended the doctor’s license for three years.  The doctor appealed the ruling. 

Fortunately, for the doctor, the court did not agree with the Board’s psychological assessment of its key witness.  After the bailiff cleared the courtroom of all sharp objects, the court held that former patient was not credible.  It reversed the Board’s order.

Sometimes, we have to make important split-second decisions about a person.  This year, I was in a fairly serious car accident.  I hit my head in the wreck, was stunned, and had a hard time thinking.  As my car filled with smoke, I began to have trouble breathing.  I heard someone pounding on the passenger side door. The man managed to get the door open and then tried to pull me out of the car.  My initial instinct was to push him away and to stay in the car.  I didn’t know this man.  I was injured.  But then, I saw that he was wearing a cross on a chain around his neck.  

With his help, I got out of the car without further injury.  As I sat in his car waiting for the Highway Patrol, I saw devotional books on the seat.  He was a seminary student.  Finally, I could calm down.  He stayed with me until help arrived.

That morning, when this man woke up, he decided to wear a cross around his neck.  That was the only “past behavior” that I could assess at the time when I had to decide whether to trust this stranger.  My decision was a good one.  I only wish that I could have gotten his name before the ambulance arrived.  I would like to be able to thank him.

And to you dear reader, Happy Thanksgiving.