Stark & Anti-Kickback. If a doctor treats Medicare or Medicaid patients, that doctor is subject to numerous statutes and regulations governing those programs, including the (in)famous Stark and Anti-Kickback laws. Generally speaking, Stark forbids referrals by physicians to businesses they own, and Anti-Kickback forbids payments in exchange for patient referrals. These broad and confusing laws can trap the unwary physician looking to expand his practice by entering into relationships with potential referral sources or branch out in other medical services. A lawyer can help a doctor avoid these traps.
Subpoenas. What should a doctor do when he or she receives a subpoena demanding a patient’s medical records or demanding the doctor appear in court to testify about a patient’s treatment? Call a lawyer.
Subpoenas for medical records must comply with HIPAA and state privacy laws. A doctor who dutifully produces records in response to a defective subpoena may be in violation of HIPAA. A lawyer can advise whether the subpoena is valid.
Subpoenas for testimony pose a different problem. A subpoena for a doctor to testify may be an attempt by a litigant to get a doctor to be the litigant’s expert witness for free. Doctors can be forced to testify about a patient they actually treated and the facts and circumstances of that treatment. But doctors generally cannot be forced to testify about their expert opinion on, say, whether another doctor’s treatment fell below the standard of care. Unless a doctor likes working for free, he or she needs a lawyer’s advice and assistance to comply with the subpoena without being taken advantage of unfairly.
Business & Employment Matters. Medicine isn’t just a business, but it is a business.
Physicians, like any other business people, make contracts: with employees, insurers, billing companies, practice managers, suppliers, landlords, janitors, and contractors. A doctor needs a lawyer to review these contracts and leases to make sure they’re fair, do what the doctor thinks they do, and point out hidden traps. And when a dispute arises, a doctor needs a lawyer to advise how to resolve that dispute, whether through negotiation, mediation, or litigation.
Medical practices, like other businesses, expand and grow. Doctors buy, sell, and merge practices, open branch offices, start up new companies. A doctor needs a lawyer to advise how the business should be set up — sole proprietorship, partnership, limited partnership, limited liability partnership, limited liability company, corporation — and to draft the legal documents necessary to set it up.
Doctors hire and fire employees. They need lawyers to advise whether a new hire should be at will or have a contract, and to draft the contract if one is required. They need lawyers to help them make sure payroll and sick leave practices, hirings, firings, and other actions comply with federal and state laws against sex, religious, and age discrimination, the Family Medical Leave Act, and the worker’s compensation law.
Estate Planning. Doctors need lawyers to help them plan for old age, retirement, and death. They need wills and they may need trusts, and they need lawyers to write them.
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The common thread connecting all of these scenarios is this: as in medicine, so it is in law that an ounce of prevention is worth a pound of cure. Doctors, like other businesspeople, make the common mistake of saving a thousand dollars by writing that contract or terminating that employee or writing that demand letter themselves, only to make mistakes worth tens of thousands.
