A $750,000 settlement recently paid by a large physician practice group highlights how important it is for organizations to regularly conduct proper HIPAA risk assessments.

The Cancer Care Group (based in Indiana) allegedly failed to protect electronic patient data (“ePHI”) as required by the Health Insurance Portability and Accountability Act’s (“HIPAA”) Security Rule.  The Group’s compliance issues arose after an employee’s laptop bag containing unencrypted electronic patient data was reported stolen out of the employee’s car.  According to the resolution agreement between the Group and the Office of Civil Rights (“OCR”), the Group failed to conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of its ePHI.  As a result, the Group did not implement appropriate and effective policies and procedures to govern the receipt and removal of computer hardware and electronic media containing ePHI into and out of the Group’s facility.  This failure lead to the improper disclosure of ePHI related to approximately 55,000 individuals and an agreement to pay $750,000 to resolve the OCR’s allegations.  The Group was also required to enter a three year Corrective Action Plan to come into compliance with HIPAA.

The takeaway for all organizations covered by HIPAA is that one of the most important aspects of an effective HIPAA compliance program is the implementation of regular risk assessments.  These assessments must include a thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information held by the organization or its business associates.  By conducting these assessments, organizations can uncover and prevent breaches such as those alleged against the Cancer Care Group by implementing appropriate security measures.  Such measures would certainly include ensuring that any electronic health information would not leave your facility unencrypted and sitting unattended in a parked car!

The Resolution Agreement can be found at:
http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/cancercare-racap.pdf

 By Anthony R. Eaton

 by Daniel L. Baxter

Veterinarians are exposed to liability threats each time they encounter a potentially dangerous animal in a clinical setting. Fortunately, you have several weapons at your disposal to minimize your risk.

Written Warnings and Notifications

The first line of defense against liability is the use of written warnings and notifications. This encompasses warnings issued to staff members and pet owners, as well as compliance with statutory notification requirements, which are requirements imposed by California law. Examples of statutory notification requirements include:

• Duty to inform law enforcement when you believe an animal has been a victim of abuse.
• Duty to inform law enforcement when you believe an animal has been injured or killed in a staged fight.
• Duty to report injuries occurring at rodeos.
• Duty to report suspicions of a rabid animal or rabid animal bite.

Referrals

In some cases, referrals of dangerous animals can help protect against liabilities.

Prescriptions

Prescription medication can sometimes help with known behavioral problems. However, it is important to provide the animal’s owner with complete, detailed instructions any time medication is prescribed.

Insurance

Since you cannot possibly neutralize every threat of liability, strive to keep appropriate insurance policies in place to protect your practice. The type and amount of coverage you need will depend on the nature of your practice, your specialty and other factors. When selecting an insurance policy, remember to consider your own personal comfort or discomfort with risk, as well as the value of your business and personal property.

 by Stephen K. Marmaduke

As a veterinarian with a complex practice, you can be subject to a number of different employment laws. Failure to follow these laws can result in expensive, traumatic incidents that have the power to destroy the practice you have worked so hard to build. To prevent these problems, you should take the time to familiarize yourself with the various employment-related legal issues that may affect your practice. Some of these laws include:

• Discrimination – Federal and state laws prohibit you from discriminating on the basis of age, sex, disability, national origin, religion, race or other such characteristics. For example, it is illegal to exclude someone from consideration for a promotion because he or she is older than another candidate.
• Sexual Harassment – Sexual harassment laws protect workers from unwanted advances, bullying and coercion of a sexual nature. These laws encompass a wide variety of incidents, from disparaging remarks about an individual’s sex in general to requests for sexual favors.
• Whistleblower Claims – Multiple laws protect employees from retaliation when they report fraud or dangerous work conditions in good faith. For example, if an employee suspects fraud and reports his or her suspicions, you cannot take action against that employee.
• Leave Laws – When an employee is absent, several leave laws may govern the employer’s actions, including the Americans with Disabilities Act, the California Family Rights Act and/or the Family Medical Leave Act. Different laws may apply depending on the nature of the absence.
• Disability – Under the Americans with Disabilities Act, employers must identify employees with disabilities and make reasonable accommodations for these individuals.
• Meal and Rest Periods – In California, unpaid meal periods must be at least 30 minutes long, and paid rest periods must be at least ten minutes long.
• Worker’s Compensation – When employees are injured on-the-job, they can file workers compensation claims. Employers are unable to retaliate against employees who file these claims.
• Independent Contractors – Employers aren’t required to satisfy as many legal requirements when dealing with independent contractors. However, attempting to classify employees as independent contractors when they don’t meet the qualifications is never a good idea.
• Covenant Not to Compete – In general, California doesn’t allow non-compete agreements except in limited circumstances. While you can expect loyalty from employees during the term of their employment with your veterinary practice, you won’t be able to enforce any non-compete covenants after employment has been terminated.
• Electronics, Technology and Social Media – Laws pertaining to social media, technology and related issues can be complicated, and further developments are expected in this area. However, employers should have clear policies with regard to technology that detail the rights and responsibilities of employees.

 by Daniel L. Baxter, Esq.

Veterinarians have a number of duties to satisfy in order to comply with the requirements of the law. Some of these duties include:

Providing Competent Care to the Patient

As a veterinarian, you have a responsibility to provide quality, competent care to every patient you encounter. This responsibility applies to every task you perform as you care for patients, including:

• Physical exam
• Diagnostic testing
• Selecting a treatment
• Performing procedures/Administering treatments
• Aftercare
• Recordkeeping

In order to discharge this duty, you must act competently at all times. Examples of negligence with regard to this duty include:

• Failing to perform a thorough exam.
• Misreading the results of diagnostic tests.
• Selecting an inappropriate treatment.
• Performing a treatment without consent.
• Recording health-related information inaccurately

Supervise Staff

Veterinarians are responsible for their own actions, as well as the actions of their staff members. In fact, under a legal theory known as “respondeat superior,” you can even be held legally liable when your employees are negligent.

For example, assume an inexperienced and unsupervised employee is instructed to administer medication to a patient in Room 1 but accidentally administers the medication to a patient in Room 2. In this case, both patients may suffer side effects, and you can be held responsible for any and all of the consequences. Thus, it is essential to supervise staff members responsibly at all times.

Maintain Safe Business Operations and Facilities

As a veterinarian, you are both a clinician and a business owner. Thus, you are vulnerable to all of the same liabilities as other business owners, including on-site injuries sustained by clients, staff members and visitors. For example, if a visitor to the facility falls on a wet floor, trips over an animal’s carrier or is attacked by an improperly restrained animal, you may be held responsible for any resulting injuries.

To protect yourself and your practice, it is important to:

• Develop procedures and protocols for keeping the premises safe.
• Teach staff members to identify and resolve threats to safety when they occur.

 By Thomas G. Redmon

The Veterinary Medical Board’s “Cite and Fine” Program was first implemented in 1990 to aid in the processing of complaints made against veterinarians. “Cite and Fine” issues can be the result of a number of problems, ranging from inadequate recordkeeping to violations in another state. These issues can not only cost your practice money, but they can also lead to more serious disciplinary actions in some cases. For these reasons, strive to protect yourself from “cite and fine” issues as much as possible. To protect your practice, follow these tips:

Keep detailed records.

Failing to keep adequate records on every patient is a common cause of “cite and fine” incidents. Not only can inadequate recordkeeping result in a citation on its own, but it can also complicate other cases that rely on complete records for evidence.

Prevent problems associated with inadequate recordkeeping by creating detailed, complete records for every patient you treat. Establish clear record keeping procedures, educate your staff with regard to these procedures, and make sure that everyone follows these systems at all times and that you and your team amend and refresh them as necessary (for instance, when your office changes locations or gets new computers).

Maintain adequate insurance coverage.

Even with preventative measures in place, you may still encounter VMB complaints. Protect your practice from financial loss by maintaining an appropriate insurance policy. The exact type and amount of insurance you will need depends on the nature of your practice, your specialty and your level of exposure, so it is wise to consult an insurance agent for guidance before you select a policy.

Consult an attorney when necessary.

When an incident occurs or a claim is filed, consult a qualified attorney early in the process. Attempting to deal with these issues on your own may lead to unnecessary financial loss, damage to your reputation and other such consequences. On the other hand, an attorney who has experience dealing with VMB cases can help you gather the evidence you need to defend yourself against the accusations and minimize the likelihood of a citation or more significant disciplinary action.

We are pleased to announce Neal C. Lutterman, former deputy city attorney for the City of Stockton, has joined our firm.

Neal’s return to private practice focuses on municipal law and defending physicians, hospitals, medical groups and allied healthcare providers in professional liability matters, both strong areas of expertise for Wilke Fleury.

Neal was the supervisor of the Litigation Division in Stockton and a member of the municipal bankruptcy project management team.  He served as the primary advisory attorney to a number of key city departments, including the police, fire and administrative services, the latter of which oversaw the finance, budget, accounting, information technology and revenue divisions, as well as the police department’s code enforcement division.

Prior to his tenure in Stockton, Lutterman was a shareholder in the litigation firm of Riggio Mordaunt Kelly & Lutterman.  For nearly 15 years there, Lutterman represented physicians, surgeons, hospitals and medical groups in professional negligence actions.  Additionally, he successfully represented physician clients before the Medical Board of California and in proceedings before hospital credentialing committees.

SACRAMENTO – Lobbyist Shannon Smith-Crowley, a registered California lobbyist for more than 15 years who focuses on healthcare, women’s equity, life sciences and the biomedical industry, has joined Sacramento-based law firm Wilke Fleury in its Government Affairs group.

Smith-Crowley spent four years lobbying for the California Medical Association, where she focused on managed health care, medical staff, legal issues and reproductive health. She then founded Partners In Advocacy (PIA) in 2003 to specialize in medical and reproductive health advocacy. PIA expanded its mission over the years to address human trafficking and women’s equity legislation.

Notable legislative successes during her career include: developing California law that requires maternity coverage in all health insurance policies, well before the enactment of similar provisions in the Affordable Care Act; working on bills creating California’s public umbilical cord blood banking program, which provides unique material for lifesaving stem cell transplants and groundbreaking biomedical research; contributing to bills allowing HIV+ men to safely create families using Assisted Reproductive Technologies; and playing a pivotal role in developing the Modern Family Act, protecting the rights of intended parents, donors and surrogates.

Eleven of Wilke Fleury’s attorneys have been listed as 2014 Northern California Super Lawyers and Rising Stars. The firm’s Super Lawyers are Philip Birney, Daniel Egan, George Guthrie, Ronald Lamb, Stephen Marmaduke, Thomas Redmon and Robert Tyler. The firm’s Rising Stars are Daniel Baxter, Anthony Eaton and Steven Williamson.

Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check.

Super Lawyers® can be found online at www.superlawyers.com.

Our firm was proud to participate in the Sacramento Habitat for Humanity ‘s 2nd Annual Attorney Build!

Wilke Fleury’s 11-member team included attorneys and professional staff who worked on the home in order to provide home buying opportunities for low-income families. The Habitat for Humanity builds affordable homes in partnership with families in need, supported by a host of volunteers, faith based organizations, donors and corporations for the betterment of Sacramento’s community.

We also congratulate our managing partner, Ronald Lamb, on his recent appointment to the Habitat for Humanity Board.

As an attorney who practices primarily in the construction defect arena, I read Dr. Craner’s commentary¹ with particular interest. My practice includes both prosecution as well as defense of owners and developers in residential and commercial property cases, many of which have a “mold” component. Indeed, my deposition of Dr. Bruce Kelman in the Kerruish v. Kimball Hill Homes case is cited in Craner’s article.

In my many years of experience on both the plaintiff and defense sides of the “mold” debate, i.e., whether and to what extent indoor mold arising in water-damaged buildings is a valid, diagnosable, treatable, and preventable environmental health disorder, I have, since its publication, consistently observed defense experts relying upon the ACOEM’s statement on “Adverse Human Health Effects Associated with Molds in the Indoor Environment”² as the “final” scientific word on the issue. Plaintiff experts, on the other hand, are routinely challenged to defend and prove the scientific basis of their affirmative opinions as a rebuttal to the ACOEM Statement.

Those of us who practice in this area have long suspected that the heretofore concealed process by which the ACOEM Mold Statement was created was flawed and biased, not only in its content and balance as an “evidence-based” guideline, but especially in its tone, which blatantly comes across as a “defense argument” to any attorney willing to read it. How can any advocate come away with any other impression when the same experts who were profiting from defense medical/legal consultations and testifying in mold-related litigation were incredibly selected by ACOEM to be the primary authors of its organizational position statement on this subject?

Dr. Craner’s critique has finally brought some light and balance to the issue. Construction defects and resultant litigation related to indoor mold will go on, but I strongly suspect the ACOEM Mold Statement will no longer receive the same level of reliance or respect that it has been unduly given up to this point by attorneys and experts. ACOEM, as an organization, has major credibility problems as a result of this document and would do well to follow Dr. Craner’s recommendations to restore organizational integrity and respect.

References
1. Craner J. A critique of the ACOEM statement on mold: undisclosed conflicts of interest in the creation of an “evidence-based” statement. Int J Occup Environ Health. 2008 Oct-Dec;14(4): 283-98.
2. Adverse Human Health Effects Associated with Molds in the Indoor Environment. Journal of Occupational and Environmental Medicine:Volume 45(5): 470-478 (2003).

On Friday, February 1, the United States Court of Appeal for the Ninth Circuit upheld a $5,000,000 judgment in a 2010 case brought by Wilke Fleury on behalf of plaintiffs Brian Dawe, Gary Harkins, and Flat Iron Mountain Associates against the California Correctional Peace Officers’ Association, Corrections USA, and one individual defendant. That judgment, in turn, followed a three-month trial in which a federal jury found that the defendants defamed Messrs. Dawe and Harkins and perpetrated related acts that caused significant damages to Dawe, Harkins, and Flat Iron Mountain Associates.

On appeal, the defendants argued that the judgment against CCPOA et al. was too large, and also maintained that certain claims should have been denied altogether under California’s application of the “litigation privilege,” among other principles. The appellate panel uniformly and unanimously rejected each of the defendants’ arguments, and affirmed the district court judgment in full.

In both the jury trial and on appeal, Dawe, Harkins, and Flat Iron were represented by Wilke Fleury partner Dan Baxter. Dan and his clients not only achieved the victories mentioned above, but also prevailed on each of the counterclaims advanced by the defendants at the trial.

Wilke Fleury congratulates Dan and his clients for achieving a fair and just result.

The work of Wilke Fleury partner and lobbyist John Valencia was hailed by the American Society for Dermatologic Surgery in the September/October 2012 edition of Currents, the Society’s semimonthly magazine. In an article entitled “ASDSA Victory: California Patient Safety Bill Passes,” the Society detailed the passage of Assembly Bill 1548 (imposing stiffer penalties for violations of the ban on “rent-a-doc” business schemes that have become prevalent in the context of cosmetic medical procedures), and specifically highlighted the importance of Mr. Valencia’s work. Among the “lessons” noted by the Society in advocating for AB 1548’s passage was the following:

"Engage an excellent contract lobbyist:  John Valencia of Wilke Fleury acted as the contract lobbyist in California for every step of this effort.  He is passionate and knowledgeable about this issue and became a trusted resource within the state legislature, MBC, Governor’s Office and other venues.  His hard work and creativity was absolutely critical to this success."

Wilke Fleury is proud of Mr. Valencia’s diligent work, and values the trust and confidence the Society has placed in Mr. Valencia and the firm.

Wilke Fleury Partner and Chief Lobbyist, John Valencia, will address The Federation of State Medical Boards (FSMB) on November 1st in New Orleans. Mr. Valencia has been invited to present on "The Use of MedSpas in California to Facilitate the Nonphysician Practice of Medicine." Mr. Valencia will chronicle the recent, successful enactment into law by California Governor Jerry Brown of Assembly Bill 1548 to counter these unlawful practices – a project of Wilke Fleury client, the American Society for Dermatologic Surgery (ASDS).

The measure was strongly supported by the Medical Board of California.

The Federation of State MedicalBoards is a national non-profit organization representing the 70 medical and osteopathic boards of the United States and its territories. The FSMB’s 2012 Board Attorneys Conference convenes over two days to address key, patient-protection issue developments in the states.

Wilke Fleury associate Samson Elsbernd is a trustee on the State Bar of California Board of Trustees (formerly, the Board of Governors). Recently, Mr. Elsbernd’s fee waiver proposal to the State Bar Board of Trustees returned from the public comment phase, and was unanimously approved by the Board of Trustees on July 20, 2012 as State Bar Rule 2.16(C)(3)(c). As a result of Mr. Elsbernd’s work, Rule 2.16(C)(3)(c) now allows for a 50% waiver of annual membership fees for members with a total gross annual household income of $20,000 or less.

Wilke Fleury applauds Mr. Elsbernd’s efforts on behalf of financially struggling attorneys.

Wilke Fleury is pleased to announce that one of its partners, Robert Mirkin, has recently been bestowed the “AV Preeminent” peer review designation by Martindale-Hubbell, joining several other Wilke Fleury “AV” attorneys. Martindale-Hubbell’s peer review ratings are an objective indicator of a lawyer’s professional ability and high ethical standards, and the “AV” designation signifies an attorney’s ranking at the highest level of professional excellence.

Mr. Mirkin specializes in real property litigation and transactions, with a particular emphasis on receivership work.
Wilke Fleury is proud to count these fine lawyers among its ranks.