Newly licensed doctors must take care not only to provide top-quality medical care, but also to avoid numerous potential legal perils.
That was the advice attorney Crane Pomerantz provided recently to 51ԹϺ School of Medicine internal medicine residents — physicians who have finished medical school and are now receiving training in their chosen specialty. He emphasized that doctors just starting their careers can unwittingly end up in legal trouble.
“You are about to embark on a career this is highly regulated — as highly regulated as any industry I can think of,” he said during a weekly “Academic Half Day” held every Tuesday afternoon for residents. “The problem you face at this point in your career is that you don’t know what you don’t know. My goal today is to give you a brief overview of some of the things you need to be aware of as you start practicing.”
Pomerantz knows his way around health care law. He was the criminal health care fraud coordinator in the U.S. attorney’s office for the district of Nevada, where he worked for almost 14 years. Prior to his tenure as a federal prosecutor, Pomerantz worked in a pair of large Washington, D.C., law firms, where his practice focused on health care fraud and abuse litigation and counseling. He began his career at a Boston law firm, where his work focused on health care fraud defense.
High-Profile Case
Four years ago, Pomerantz was doing something far different than talking to medical residents. He stood in a Las Vegas courtroom as an assistant U.S. attorney and spoke of a physician, Dr. Dipak Desai, who intentionally defrauded the government by inflating the length of medical procedures and overbilling Medicare, Medicaid, and private insurance companies for anesthesia.
Pomerantz called Desai, a gastroenterologist, a “despicable human being” who was driven in medical practice by “wanton, crass greed.”
Desai would receive 71 months in prison for his role in the multimillion-dollar health care fraud scheme — a federal conviction that was to be served concurrently with a life sentence that Desai received earlier in state court for his role in a 2007 hepatitis outbreak at clinics where colonoscopies were performed. Health officials, who said unsafe injection practices involving the reuse of syringes for anesthesia led to the outbreak, had to notify 63,000 former Desai clinic patients to get tested for potentially fatal blood-borne diseases, including hepatitis and HIV. Two former Desai clinic patients died, and as many as 114 cases of hepatitis were linked to Desai clinics. Desai died in prison in 2017.
Pomerantz made clear his respect for physicians, saying that the overwhelming majority of doctors work tirelessly to give patients the best care possible. “Part of me is a frustrated physician,” said Pomerantz, who now does legal work for physicians on behalf of the Sklar Williams law firm. “Doctors work unbelievably hard to help others.”
Important Assistance
During his presentation, Pomerantz said it is important for doctors just getting into practice to find a good health care lawyer, a competent certified public accountant, a solid office manager, and a mentor who can be counted on for good advice. He advised that the lawyer must be a specialist in health care law because there are many arcane areas.
For example, he said that most young physicians know that if they give or receive, offer or solicit something of value in exchange for patient referrals, they’ve committed a crime. But then he showed how a physician could get into trouble by not understanding the Anti-Kickback Act (AKA). “What if you have a large Medicaid census in your practice, and out of sympathy for their financial situation, you consistently waive their copayments? Or, simply in an effort to make sure that they keep their regular appointments, you give them Uber or Lyft coupons to come to the practice? Even though your motivations may be good, those practices arguably violate the AKA.”
Another violation could come if the physician is, for instance, an orthopedist and decides to invest in a small durable medical equipment business to which they already refer, he said. Unless such a contractual agreement was structured properly, Pomerantz said it is likely a violation of the AKA.
Pomerantz also talked about the Ethics in Patients Referral Act, which is also known as the Stark Law because it was introduced by then-U.S. Rep. Fortney “Pete” Stark of California. Essentially, it means the government can sue a physician of a Medicare or Medicaid patient for referring to any entity in which the physician has a financial interest. And it doesn’t work to put the ownership of a lab or other enterprise in which a physician has a financial interest in the name of a spouse or business partner. “The Stark law prohibits the referral if you or an immediate family member have a financial interest in the entity to which the referral is made,” Pomerantz noted.
Prescribing medications, particularly during the current opioid crisis, also can be a potential legal minefield for physicians, Pomerantz said before giving an example.
“You prescribe a 30-day supply of Percocet. And 20 days in, your patient, a long-standing patient of the practice, comes in and says, ‘I accidentally dropped my pills down the sink’ or ‘I left my prescription at the hotel on vacation’ or ‘My dog ate some pills.’ As a new physician, I’m guessing you’re going to be very trusting. Your concern is going to be to want to ameliorate your patient’s pain, and you’re going to be inclined to write a new script. But what if the patient is taking the pills inconsistent with your prescription (four a day instead of two) and you’ve unwittingly contributed to your patient’s addiction? What if, unbeknownst to you, your patient is selling his Percocets. What safeguards do you have in place to make sure your prescribing practices are gold standard?”
Dr. Bhavana Bhaya, a senior resident in the School of Medicine’s internal medicine program, said she learned a lot from the Pomerantz’s presentation. “It is very important for medical personnel to understand the laws within which we have to practice medicine,” she said. “Many of today’s physicians are ill-equipped to handle the legal, regulatory, and business realities of modern medicine.”
Even Dr. Buddha Dawn, the chair of the school’s department of internal medicine, who has practiced medicine for decades, found the attorney’s remarks helpful.
“In this day and age, all doctors need a good lawyer,” he said.
Showing Respect
Pomerantz told the residents that even though they have extremely busy schedules and some challenging cases, they need to remember to mind their manners and demonstrate respect for others if they don’t want to end up in trouble.
“Who makes complaints to the Board of Medicine? Patients who feel like they haven’t been treated with respect. Know who causes doctors to lose their privileges at hospitals and with insurers? Other doctors and nurses who think you’re being greedy or rude or disrespectful. Know who files civil litigation and makes law enforcement referrals? Disgruntled business partners.”
In his presentation, he said he’s been involved in “many hospital privilege hearings where my client is at risk of losing their privileges simply because they were rude to a charge nurse or had a personality conflict with another physician. So, if you take nothing else out of this today, quote me on this: ‘Play nice in the sandbox.’”
