so tonight I’m going to talk about two
key mistakes four big questions five risk management questions for legal
strategy areas starting to feel like Passover a little bit and I’m gonna give
you zero BS and by the way I want you to know this you’re getting a knowledge and
power and the entire talk is gluten free and also because I’m a lawyer I want to
give my disclaimer stateman has not been evaluated by FDA let’s take the big
picture the health care market over four trillion dollars there’s a lot a lot of
business there’s a lot of ways to help people at the same time if they’re huge
areas of risk just to speak about physicians and I know I’m addressing an
audience with nurse practitioners chiropractors acupuncturists many other
kinds of practitioners just looking at the almost half a million physicians
20,000 over a four-year period were disciplined and 5,000 lost their license
and if we talk about HIPAA the largest HIPAA penalty four point three million
dollars that’s a big penalty now I’m going to talk about two key mistakes so
the first key mistake does anyone recognize this quote
does anyone worry about this the universe expanding well in Woody Allen’s
film Alvy Singer he was worried he wouldn’t
go to school he was a kid his mother sent him to a psychiatrist and he she
said why won’t you go to school because it it’s futile the universe is expanding
and every day continues to expand and his mother said Alvie you live in
Brooklyn Brooklyn is not expanding go to school so Alvie was worried about the
wrong thing and this is what a lot of clinicians do they’re focused on one
little area but meanwhile they’re not aware of the other areas of legal risks
that can come at them and take a little sharp bite
these are the things that you should be worried about Attorney General District
Attorney Medical Board FDA FTC other government agencies Stark how many
people heard of it the intellectual property issues malpractice plaintiff
trove the third party plaintiff second country for copyright violations
trademark violations the things you haven’t even thought about things in
your business contracts HIPAA we talked about telemedicine fee splitting and I
kickback assurance fraud the list goes on and on unfair business practices
plaintiffs love to air that out false advertising okay now back to the Divine
Feminine that was the wrathful feminine key mistake number two the second key
mistake that people come to my law practice my law firm with is they’ve
gotten some advice somewhere they heard it from a friend who heard it from a
senior colleague who heard it from somebody else
who got it from good authority from their lawyer who told them this and the
formula goes exactly like this I was told that as long as I do blank I’m okay
have you ever said that to somebody right I see some nodding heads as long
as I do blank I’m okay substitute your theory dessert your hypothesis does your
I heard one the other day about Medicare you don’t violate Medicare he’s a
cardiologist if you do this this and this but the minute that he takes out
his stethoscope and he puts it on the patient’s chest boom suddenly he’s
violated Medicare I’ve never heard of such a thing
there’s no way to research anything you know quite that hypothetical and
abstruse it’s a total myth it’s hearsay so don’t base your legal strategy on
hearsay that’s the second key mistake let me tell you story about a client of
mine dr. Seymour hearts Seymour I grew up in a very poor household and he
wanted to make a difference he saw a lot of suffering around him so he grew up he
got some student loans he went to medical school
and finally he got his certification from IFM and he opened up a very
successful practice and he joined the staff of a local hospital where he was
very very successful he left Fayette and I’ve got the order
backwards with in essence he built a successful functional medicine practice
he was very happy and he was having some financial success but not quite enough
to pay off that mountain of student loans so he’s struggling and there were
a few legal sand traps that were waiting for him it shortly after all of the
success he hit the wall he had forgotten to have a lawyer review his employment
contract so he got to his practice and there was this really nasty non-compete
and he started getting demand letters from another lawyer and he was very
distressed then he got hit from Medicare for double billing because they had a
concierge practice and he hadn’t vetted the Medicare issues and third he didn’t
know the difference between electronic prescribing and telemedicine rules which
actually required him to be licensed in the remote state so he didn’t know
anything about telemedicine he was also prosecuted for false advertising he
didn’t think he’d done anything wrong all he did was take the advertising
company copy that another company had put on its website and put it on his own
website and he got investigated by the DEA and he also got sued by one of these
plaintiffs to role law firms I’m a lawyer would call these other lawyer
trolls now Seymour Hart he’s an amalgam of several different clients any one of
these is enough to fell a practice one can be enough and these are real stories
they’re just examples from the myriad of possible issues out there and you can
lose it all in a second and it’s always better to have preventive lawyering it’s
better to go see a lawyer before just like going to the dentist just like you
having good nutrition you want to have your legal checkup have the green juice
get the inoculation get the good vitamins get showered with good legal
phytochemical nutrients right all of that is true so as they say
in dragnet the stories are true the names have been changed to protect the
naive dr. Hart resolved that he would detoxify himself from bad business
practices and identify and address the root causes of his legal ailments
he was overworked and burnt-out he sent it on a journey to find someone who
could teach him business has an integrated holistic system not a
response to an isolated set of symptoms he found that one person who could teach
him about a functionally integrated curriculum teaching a business strategy
operations marketing and patient communications and much more about the
business side because he realized he was wearing two hats hat number one the
astute clinician hat number two the business person and the business person
had a lot to learn about legal Stratis strategy and a lot to learn about legal
strategy and he no longer wanted to learn the hard way he wanted to learn
through education the fact is that our society is
experiencing a sharp increase in the number of healthcare practitioners who
suffer from complex chronic legal illness that’s why I wanted to take a
holistic approach that’s why I want to address all the threats does that sound
familiar I just lifted it right out of the I FM website and I just substituted
a lot for medicine but it’s really true you want to look at law in terms of the
root causes preventive lis at the whole system not after the fact not with
litigation not with when the board comes after you for something so this is what
I’ve devoted a great portion of my career to whether it’s been teaching at
Harvard Medical or publishing in the annals of internal medicine other
medical journals law reviews getting my own grant as a PI from the
NIH so I’ve actually been you know not on the medical side but I’ve been very
closely intertwined with medicine for a great deal of my career and in my law
practice we represent physicians nurse practitioners all sorts of practitioners
also businesses entrepreneurs maybe your private labeling a brand of supplements
other issues there lots of mobile medical apps wearable technology a I
powered products right the future is all coming
to the practice and this is what we look at we want to eliminate legal disease
and when we do that we asked four questions first question what legal
challenge brings you here what does that sound like it sounds like what you’d ask
a patient right and secondly what outcome would you ideally like if I
could wave a magic wand and it could all go away or it could all line up what
would it be and thirdly what have you done so far to solve this and what I
find is that a lot of people have spent a lot of money on lawyers how many
people have spent a lot of money on lawyers chasing the wrong how many
chasing the wrong thing or not getting answers all right I need to meet all the
great lawyers out there who’ve given you great advice but a lot of people they
get the wrong advice because they don’t have specialists and last what will it
cost if you don’t solve this puzzle and so a client recently answered this fines
jail time so the answer these four questions so we know what’s at stake and
the first thing we talk about is this you cannot stop the universe from
expanding you cannot eliminate legal risk the answers are not binary they’re
not dichotomous you’re not asking for yes or no but you want to look at is
everything that goes into risk management and risk mitigation so what’s
the magnitude of the risk what could possibly go wrong how heavy could it be
are we talking about loss of licensure are we talking about a huge penalty a
huge fine what’s the likelihood that it’s going to
happen what’s the benefit of your proposed approach and what’s your risk
tolerance just to pin on that one so a lot of clients come and they say
well do bird did this right well you’re not a bird right if you’re in practice
you’re not a bird you just don’t have the bandwidth so and support to be
realistic and look at your alternatives and that’s where the strategy really
comes in to find out what else you could possibly do so we try to do is to have
business strategy and legal strategy aligned so that the whole package makes
sense for example if you’re dealing with operations think about HIPAA think about
privacy and security telehealth if you’re talking about marketing and sales
membership versus insurance models patient communications
consent forms what are your consent forms look like and some of the
questions that arise are things like if you’re doing telehealth do you have to
be licensed in the remote state how many people have like an online coaching
program or a practice that reaches across all the states so this is a big
question you know do you need a license in that remote state when do you need it
do you need to have a good faith exam do you need to see the patient in person
the law is used to say you need a face-to-face exam well what’s
face-to-face when you have FaceTime what does that mean lab tests prescribing are
you doing health coaching can you just remove your physician hat or your NP hat
and call yourself a coach big question HIPAA are you under HIPAA do you think
you’re under HIPAA maybe you are maybe you’re not maybe you just signed a
business associate agreement electronically so you don’t think you’re
under HIPAA because you heard it from a friend you heard it from a friend who
talked to a lawyer who said that as long as you’re not but you might have signed
something so you might be under HIPAA do you have privacy and security systems if
something goes wrong with a patient or if let’s say you do a really great job
with a patient but their physician gets jealous because you did such a great job
and had a good outcome and they complain to the board the board comes in now they
open up the kitchen sink now they’re going to look at your privacy and
security practices and it’s really important to beyond to have everything
locked down right we were just talking at dinner about that somebody who went
through an investigative process and thank goodness they had locked down
these other systems okay membership versus insurance Medicare obviously a
great conversation start at a cocktail party
do you have a membership agreement what goes in your membership agreement is it
just like a gym membership or other special things that you need to put in
consent forms do you talk about the risks the benefits and the alternatives
what’s your level of protection are you providing primary care are you more in a
specialist role so these are just some of the questions that we want to drill
into the important point is to raise them and to understand that when you
talk to a lawyer it’s like talking to a really good diagnostician their job is
to issue spot and then help you mitigate risk and to
put these protections in so just imagine if doctors see more heart and what if
he’d read his contracts before signing them amazing right
what if you have legal review of their contracts how many people have signed
contracts without having a lawyer review them
that’s like self diagnosing right so that’s a big no-no you know expanding
through telehealth what about what if you could expand your brick-and-mortar
practice let’s see you’ve got a specialty area and you can reach all of
these people nationwide and what if you could do it in a way that’s more legally
sound than just kind of throwing something on the web and worrying about
it later it’s not a good idea to ask for forgiveness instead of permission when
it comes to the law it’s better to figure it out what if you can handle
your Medicare issues what if you’ve got great consent forms I was literally
talking at dinner to somebody who had had this disciplinary issue and I’m not
going to say the name but the state had combed through his consent forms line by
line and one of the things that we lawyers do is we we’re good at crafting
language a sentence you know one sentence can stand between you and the
cliff it’s got to be a good sentence so what if he managed his legal risk
imagine how happy he’d be he wouldn’t find himself after all the loans and all
the hard work and all the study and everything that you all go through his
practitioners and all the angst and all the late night calls and the texts from
patients and people sometimes listening and then you celebrate sometimes they
don’t all of this and then having the legal strategy line up so the practice
itself it has a good foundation just imagine he’d be very happy or she and
I’m going to probably fold her arms and have that post that’s my message thank
you very much great to talk to you

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