Michael T. Goldstein, M.D., J.D.
Kurt Buzard, M.D.
DISCLOSURE
 THERE ARE
NO CONFLICTS
OF INTEREST
CONTACT INFORMATION
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
Michael T. Goldstein, M.D., J.D.
115 East 61st St. Suite 3A
New York, N.Y. 10065
212-371-6209
Email: mgvisionny@aol.com
DISCLAIMER
This lecture is for educational
purpose only
 It should not be considered legal
advice
 No attorney client relationship is
entered into as a result of this lecture
 If you require specific legal advice
contact your attorney

State Licensing Agencies
Are
responsible for the regulation and
discipline of physicians
LEGAL PRINCIPALS
Criminal Law
 Civil Law
 Administrative Law
 All have different standards and rules

ADMINISTRATIVE LAW
 Administrative
Law is
considered Civil not Criminal
 However some of the penalties
are Penal (quasi criminal)
 Loss of license, fines,
suspensions
 Everyone but the defense is on
the same team
INVESTIGATION
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There are approximately 7000
investigations per year initiated by the
filing of a complaint in New York and
California
Source of Complaint Percentage (New
York)
Government 15%
Insurers 9%
Other 4%
Out of State 12%
Physicians 2%
Public 58%
INVESTIGATION
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Each complaint is assigned an
investigator
Investigator works with MD to evaluate
complaint
Physicians are then contacted
Sometimes only an explanation is
required
Physicians can be called into an
interview
Process varies by state
FILING OF CHARGES
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Approximately 350 or 5% of the
investigations result in the filing of
charges
(similar for California and New York)
Of those charged 95%- 97% are
convicted of at least one charge
Goal is be in the 95% who are not
charged
Strategy is to seek competent legal
advice to guide you through the system
OUTCOMES
 Revocation
 Suspension
 Stayed
Suspension
 Public Letter of Reprimand
 Administrative Warning
STATISTICS
Disciplinary
Action
Stastics NY
Censure/Reprimand – Other 16%
 Censure/Reprimand – Probation 12%
 Dismissal 3%
 Revocation 11%
 Surrender 26%
 Suspension 32%

CONSEQUENCES
 Removal
from hospital
staffs
 Delisting by insurance
companies
 Malpractice Surcharge
 Malpractice Cancellation
SURVIVAL STRATEGY
Realize that once you are the subject
of investigation you must enter
defensive mode
 Investigators like low hanging fruit
 Do not talk to any investigative
agency without advice of counsel
 Do not send any documents to an
investigative agency without advice
of counsel

SURVIVAL STRATEGY
You must appear cooperative but do
not supply documents that you are
not required to supply.
 The more documents the greater the
opportunity to find something
 You must hire a lawyer who has
expertise in physician discipline in
your state
 You must hire a lawyer who has a
relationship with the agency

SURVIVAL STRATEGY
It is important that your lawyer knows
how the system works and has a
relationship with the agency
 Think of an investigation as a
snowball rolling down a mountain the
longer goes on the bigger it gets and
the harder it is to stop it
 If possible you want to convince the
investigator to move on to another
doctor

SURVIVAL STRATEGY
Avoid hearings if possible
 Never say anything to an investigator
which confirms guilt or opens the
door to a larger investigation
 If you are being investigated for the
care you rendered to three patients
don’t volunteer that you have treated
one hundred other patients in a
similar manner

SURVIVAL STRATEGY
Never lie to an investigator
Frequently they ask you questions that
they know the answer to
 Think of an investigation as a morality
play
 Lying dishonest doctors deserve
harsher punishments that doctors who
have made honest mistakes
 Never alter records they probably have
a copy from another source ie.
insurance co.
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SURVIVAL STRATEGY
If you have done something wrong tell
your attorney the truth
 It is the attorneys job to figure out how
to minimize the consequences of you
action
 If the care is controversial there are
peer review articles that can sometimes
justify your care
 If you have flaws in the way you run
your office you can take pro active
corrective measures

SURVIVAL STRATEGY
Investigators will treat you more
favorably if you admit that there was
a problem and you have already
taken action to correct the problem
 An experienced lawyer who is truly
on your side can negotiate effectively
to reduce the punishment
 If your lawyer is not doing a good job
change lawyers

SURVIVAL STRATEGY
If you have been previously
convicted of wrongdoing and are
being investigated for the same issue
be prepared for a harsh penalty
 Agencies do not like repeat offenders
 Once you have been convicted or
admit guilt you are on the radar.
Undercover patients will be sent to
your office

NY CATARACT CASE
Doctor enters into plea agreement
regarding unnecessary cataract
surgery
 Several years later he recommends
cataract surgery to longstanding
patient
 During medical clearance an internist
 On direct ophthalmoscopy does not
see signs of a cataract
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NY CATARACT CASE
Internist refers patient to another
ophthalmologist ( LASIK surgeon)
who corrects patient to 20/20 and
advises patient not to have cataract
surgery
 Doctor charged with professional
misconduct
 Dr. Charged with improper work up
and recommending surgery that is
not indicated
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NY CATARACT CASE
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Performing unnecessary diagnostic
tests
Bizarre and illogical conclusions at
hearing including the fact that internist
can diagnose cataract with direct
ophthalmoscope but ophthalmologist
needs dilated exam
Patient not witness
Patient could have lied during testing
Patient not examined by independent
MD
NY CATARACT CASE
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Doctor convicted of two counts of
misconduct
Incompetence in evaluating patient’s
cataract
Performing unnecessary test (A Scan)
Hearing panel recommends fine and
suspension
Case appealed within agency and
appellate body revokes license
APPEAL OF A CONVICTION
Evidence did not justify conviction
 Penalty is too harsh
 Legal errors
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APPEAL OF A CONVICTION
Wrongful conviction
 Courts defer to expertise of
investigative agency with regard to
finding of facts
 Agency presumed to know better
than courts if improper medical care
has been rendered
 If finding of facts is flawed and
logically inconsistent court can
intervene (rare)

APPEAL OF A CONVICTION
It is illogical for a panel to conclude that
an internist can diagnose a cataract
with a direct ophthalmoscope while an
ophthalmologist needs a slit lamp and
dilated exam
 The fact that the internist was allowed
to testify as an expert and the fact that
the hearing panel attached weight to his
testimony could be grounds for
rehearing
 If that happens plea bargain to keep
license
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APPEAL OF A CONVICTION
Punishment is too severe
 Courts will never overrule on penalty
 You can use punishment statistics
during plea bargaining but not post
verdict
 If this is your lawyers strategy fire
them
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APPEAL OF A CONVICTION
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Legal errors
This is where the best chances are
Did the judge improperly admit or
exclude evidence that could have been
outcome determinative
Did the agency improperly apply the law
In NY case you need to be convicted of
two counts of misconduct to be charged
APPEAL OF A CONVICTION
In NY case the two misconduct
charges were the incompetence in
working up and evaluating the
patients cataract and performing an
unnecessary A Scan
 If you can argue that the
incompetence of the work up and
performing the A Scan was only one
count of professional misconduct
then you win
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CONCLUSION
Licensing investigations are serious and
could result in actions that could revoke
your medical license or destroy your
livelihood
 Experienced legal counsel should be sought
before you have any contact with the
investigators
 Always tell the truth, do not alter records, do
not open Pandora’s box with foolish
statements
 Act proactively if you are guilty take
corrective action offer credible explanations

MALPRACTICE
 AN
INSIGHT INTO
MALPRACTICE
 MICHAEL
J.D.
T. GOLDSTEIN, M.D.,
ATTORNEY’S ASSESSMENT
 What
is the value of the case
 What is the probability of
winning (records and expert)
 What are the costs involved
 Depositions can have a
positive or negative impact on
the case
DISCOVERY
 What
is the doctors version
 Attorney wants to pin doctor down
 Doctor cannot say different things at
trial than doctor says during the
deposition. Preparation essential
 Can doctors deposition be torn apart
and used against doctor at trial
 Does doctor trip up and say
something stupid
PRE TRIAL
 Case
Dropped
 Case Settled
 If there is no agreement
case will eventually go to
trial
TRIAL
 Jury
selection is critical
 Both sides want to pick a jury that
will more likely be on their side
 There is an art to jury selection
 If one side is weak at jury selection
then the jury will most likely be
less sympathetic to that side
 Right to challenge jurors, cause
and peremptory challenges
DAMAGES
 Economic
 Medical
costs
 Loss of income
 Costs of care
 Non Economic
 Pain and suffering
OTHER CONSEQUENCES
 License
Investigation
 Malpractice Surcharge
 Malpractice policy non renewal
 Lawsuit value over insurance
 Other patients with same or
similar problem might sue
MICHAEL T. GOLDSTEIN, M.D.,J.D.
LASIK MALPRACTICE
 LASIK
accounts for approximately
20% of all Ophthalmology
malpractice claims
 LASIK Malpractice Attorneys
aggressively promote their
services on the Internet
 Large Settlements fuel the fire for
additional lawsuits
TAKE HOME MESSAGE
 LASIK
Can Be Dangerous to Your
Economic Future One Large
Verdict Could Wreck Financial
Havoc on Your Life
 What Would be the Financial
Effect of a 5 Million Dollar Verdict
on Your Life
 The Good News is that Plaintiffs
Attorneys are Just Learning
About LASIK
CAUSES
 According
to OMIC 50% of the
2006-2007 settlements involved
ectasia
 Ectasia is either secondary to
forme fruste keratoconus
pellucid degeneration or to
leaving too little corneal tissue
in the posterior cornea
ALTERED MEDICAL RECORDS
 Failure
to diagnose form fruste
keratoconus
 Combined with altered medical
records
LASIK
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June 11, 2009
PRESS RELEASE - FOR IMMEDIATE
RELEASE
Johnson Devadas and Saramma Devadas v.
Dr. N.,
Manhattan LASIK Center, PLLC, and
NewSight Laser Center, PLLC
New York County, Supreme Court of the
State of New York
Index # 107637/07
$5.6 MILLION LASIK EYE MEDICAL
MALPRACTICE VERDICT. On Wednesday,
June 10, 2009, a jury in New York City
returned a verdict of nearly $5.6 million
against Dr.N., for LASIK malpractice.
LASIK

The verdict consisted of an award of:
$2,360,000 for the patient’s loss of
income; $3,100,000 for the patient’s
pain and suffering, including loss of
life’s enjoyment; and $120,000 for the
patient’s wife’s claim for loss of her
husband’s services and consortium.
This is the second largest verdict
ever for LASIK malpractice
LASIK
The plaintiff, Johnson Devadas, is a
pharmacist who lives and works in
Queens, New York. On March 25, 2004, Dr.
N. concluded that Mr. Devadas was a
suitable candidate for LASIK surgery.
However, plaintiff’s medical expert
testified that he was not. Paul Donzis,
M.D., an ophthalmologist and cornea
specialist from Los Angeles, California,
testified that
 prior to the elective surgery, the plaintiff
had a contraindication to LASIK surgery,
forme fruste keratoconus.

LASIK
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However, as a result of the LASIK
surgery, it caused the cornea to develop
post-LASIK ectasia, or a progressive
thinning of the cornea. Ectasia causes
problems with visual quality, including
blurriness, halos, double vision, glare,
contrast sensitivity, starbursts and a
host of related phenomena involving the
distortion of light as it passes through
the diseased cornea.
LASIK

In addition to Dr. Donzis, plaintiffs called
Albert Lyter, Ph.D., from Raleigh, North
Carolina. Dr. Lyter is a former federal
agent trained in ink dating analysis. Dr.
Lyter testified that Dr. N. intentionally
artificially aged a note in his chart
concerning his purported conversation
with the patient and his wife concerning
the risks, benefits, and alternatives to
LASIK surgery.
COMANAGEMENT
 AAO
and ASCRS have guidelines
that although not the standard of
care can be detrimental to a
surgeon who ignores them
 Simplest issue for the Plaintiff’s
Lawyer and the Jury
 Surgeon is responsible for the
pre-operative work up
PRE OP WORK UP
 When
the pre operative
evaluation is done by someone
other than the surgeon the
surgeon is still responsible for
the misdiagnosis of preexisting conditions
LASIK
FALL 2003
TLC Pays $900,000 to Settle
Malpractice Lawsuit Against Dr. B.
 Using assembly-line-like procedures,
TLC-employed optometrists oversaw
initial testing procedures, prequalified patients for surgery, and
then lined up surgical candidates
upon whom Dr. B. would fly in to
operate. Surgery was performed on
both of Judge Hoch’s eyes on the
same occasion.

LASIK

By all accounts, Dr. B.’s surgical
technique was flawless. By Dr. B.’s own
candid admission, however, Judge
Hoch never should have been operated
on at all. The screening tests
conducted by TLC and provided to Dr.
B. for review before surgery showed
that Judge Hoch had a condition called
keratoconus – irregularly shaped
corneas – that disqualified him for
LASIK surgery.
LASIK
 TLC
agreed to pay $900,000 to
settle the portion of the case
directed against it. Trial
preparation for the case
against Dr. B. continued until a
separate negotiated settlement
was reached with Dr. B.’s
liability insurance carrier.
COMANAGEMENT
 Discovery
of Surgeon and
Comanagers Chart
 Fee Arrangement
 Is your fee arrangement
outside the norms (kickback)
 Liability as a Joint Venture
 Both Office Staffs can be
questioned
PERFORMANCE OF LASIK
 The
operating ophthalmologist
has the following responsibilIties:
 Confirm the identity of the patient
 The operative eye
That the parameters are correctly
entered into the laser's computer
COMANAGEMENT
 The
ophthalmic surgeon has the
primary responsibility for the
preoperative assessment and
postoperative care of his/her
patients, regardless of the type of
surgery performed
 . The decision to co-manage
should be the result of a
determination of what is best for
the patient and not economic
considerations
COMANAGEMENT
In the event that the ophthalmologist
needs to co-manage with an
optometrist(s), the ophthalmologist
should:
 Verify and document that the
optometrist(s) has the appropriate
education, training and skills to
follow patients post-operatively.
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COMANAGEMENT
 Develop
standardized guidelines
and protocols regarding
postoperative care of patients,
particularly concerning
communications
 Prior to surgery, inform the
patient if there are any
prearranged postoperative
management plans, and the
patient must voluntarily consent
to this in writing
COMANAGEMENT
 Inform
the patient of the
financial implications resulting
from the co-management
arrangement, particularly with
regard to the patient's payment
obligations and the
postoperative provider's
reimbursement.
COMANAGEMENT
 Follow
the patient until
postoperatively stable, and there
is no fixed time when the patient
is sent back to the referring
provider
 Reassure the patient that he/she
has access to the surgeon, if
necessary, during the
postoperative period at no
additional cost.
FUTURE PROBLEMS
 LASIK
Can be a Growth Industry
for Plaintiff’s Lawyers
 Age and Income of Patients,
Create the Potential for Long Term
Economic Damages and Long
Term Pain and Suffering which
will Lead to More Large Verdicts
 Large Verdicts Fuel the Growth of
LASIK Malpractice
OTHER ISSUES
 LASIK
Malpractice Verdicts can
Exceed the Policy Limits of Most
Physicians
 A Large LASIK Malpractice Verdict
Could Bankrupt a Physician
 PHYSICIANS WHO PERFORM
SIGNIFICANT AMOUNTS OF
LASIK SURGERY SHOULD
CONSIDER ASSET PROTECTION
STRATEGIES
MICHAEL T. GOLDSTEIN, M.D., J.D.
DEMANDS TO RETURN FEES
 MCO’s
have the right to audit the
charts of Participating Providers.
 MCO’s frequently hire outside
firms to audit the charts.
 Auditing companies are paid a
percentage of the funds recovered
 Audit companies have a financial
incentive to recover funds
RECOVERY CONTRACTORS
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Recovery contractors conduct audits
for insurance companies. They take a
sample of charts and then review them.
If they feel that the MCO is entitled to a
refund then they extrapolate the
findings of a sample of the charts to
determine if there is money due the
MCO
The most common areas are
Upcoding
Billing for unnecessary services
Failure to document service
RECOVERY AUDITS
 Rights
and Obligations of Par
vs. Non-Par Physicians
 Participating Physicians Have
a Contract
 Non Participating Physicians
do not have a Contractual
Relationship with the Carrier
PARTICIPATING PHYSICIANS
 Governed
by the Contract
 Right to Request Records
 Right to Audit
 Right to Conduct Random Audits
 Right to Extrapolate
 Right to Demand Recovery
 Right to Arbitrate
 Rules of Evidence do not apply
NON PARTICIPATING
 No
Privity of Contract
 Because of HIPAA may need
Patient’s Permission to Supply
Records
 Cases tried in State Court
 Traditional Rules of Evidence
CONCLUSION
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PHYSICIANS NEED TO UNDERSTAND
STRUCTURE OF MANAGED CARE
OPTIMIZE BARGAINING POWER
REVIEW THE CONTENT OF THE
CONTRACTS WITH LEGAL GUIDANCE
KNOW THEIR RIGHTS REGARDING
PARTICIPATION
PRO ACTIVELY DEFEND AGAINST GIVE
BACK DEMANDS
NON DISCLOSURE AGREEMENT
FEDERAL RECOVERY
False Claims Act $5,000-10,000 per
claim plus treble damages
 A single HCFA form is one claim
 Fraud and Abuse , a criminal statute
 Strike forces , DME, Home Infusion
Therapy
 Stark
 Qui Tams (Whistleblower)
 Recovery Audit Contractors

RECOVERY AUDIT BLOG

I have a client who has been notified by
the Eastern Benefit Integrity Support
Center that he is being placed on prepay review. This letter came only two
weeks after some requests for further
documentation justifying his billing for all
services. Does anyone know by what
criteria the RAC selects providers for
this kind of treatment? It doesn't smell
random to me. (No responses)