Accused Dental Supply Manufacturers Argue Antitrust Suit Belongs In Arbitration

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On March 21, 2017, accused dental suppliers in an antitrust suit told the U.S. Fifth Circuit Court of Appeals that a Texas federal judge was wrong to override an arbitration agreement. The antitrust suit involves a dental supply manufacturer as a plaintiff. It accused six others of unfairly pushing it out of the market. U.S. District Judge Rodney Gilstrap overturned a magistrate’s decision to send the case to arbitration. But the six suppliers argued that the district court judge improperly relied on unspecified injunctive relief which is only a minor part of the case.

Does the Case Belong in Court?

The plaintiff, Archer and White Sales, Inc. (Archer), first filed its suit against Henry Schein Inc., the Danaher Corp., Instrumentarium Dental Inc., Dental Equipment LLC, Kavo Dental Technologies and Dental Imaging Technologies Corp. in August 2012. Most of these are names that any dentists would recognize.

The magistrate had ruled that because the case involves more than just a request for injunctive relief, it should be referred to arbitration and the arbitrator should decide whether the case belongs in court. The agreement between the two parties does incorporate the American Arbitration Association’s (AAA) rules, which state that arbitrators have the right to decide questions of arbitrability. To read the brief from this case in full, click here.

Click here to visit our website and learn more about the specifics of arbitration.

To read one of my prior blogs involving cases of arbitration, click here.

Contact Experienced Health Law Attorneys in the Representation of Dentists and Other Health Professionals.

The Health Law Firm routinely represents dentists, dental technicians, pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of dentistry hearings and other legal matters. Call now or visit our website http://www.TheHealthLawFirm.com.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com

Sources:

Kass, Dani. “Dental Supply Cos. Say Antitrust Suit Belongs In Arbitration.” Law360. (March 21, 2017). Web.

Kass, Dani. “Dentists Say Small Supplier Joined Price-Fixing Conspiracy.” Law360. (February 17, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Legal representation in antitrust suits, legal representation ofr dentists, antitrust defense attorney, legal representation for alternative dispute resolution proceedings, legal counsel for informal mediations and formal mediations, complex litigation attorney, lawyer in complex health litigation, legal representation for arbitration, legal counsel for dentists, American Arbitration Association (AAA), arbitration defense attorney, legal representation for judicial arbitration, legal representation in federal cases, health care facility arbitration defense attorney, dental law attorney, health care professional arbitration defense attorney, health law defense attorney, The Health Law Firm reviews, reviews of The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

Arizona Appeals Court Affirms Dentist’s Suspension Over Questionable Prescriptions

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On December 13, 2016, an Arizona appeals court affirmed the suspension of a dentist who allegedly had a history of opioid addiction and who also allegedly wrote dozens of questionable prescriptions. The Arizona appeals court held that the state dental board didn’t violate his due process rights and had substantial evidence backing its decision that it wasn’t safe for him to practice.

The Arizona Court of Appeals, Division One, concluded that the Arizona State Board of Dental Examiners had acted within its authority by suspending Dr. Michael Wassef’s license to practice dentistry in the state. This was following Dr. Wassef’s refusal to submit to the dental board’s requests after it discovered evidence suggesting he had relapsed. The appeals court decision upheld a lower court’s decision affirming the dental board’s order.

History of Opioid Abuse?

Dr. Wassef’s possible relapse into opioid addiction reportedly first came to the attention of authorities in March 2014. This allegedly occurred when a pharmacist contacted the dental board to raise concerns about Dr. Wassef’s prescription-writing practices, according to the court’s decision. The board discovered that he had received prescriptions for controlled substances in increasing amounts over a six-year time period. Additionally, Dr. Wassef allegedly wrote 44 prescriptions in two years for the muscle relaxant Soma for his wife, his assistant and his assistant’s daughter, the opinion said.

After he tested positive for Soma and another medication, Dr. Wassef refused to submit to an assessment. As a result, the dental board issued an interim order that he obtain an inpatient substance-abuse evaluation, according to the opinion. He refused, and the dental board suspended his license in April 2014.

Arizona State Court Sides With Board.

Dr. Wassef contended that the board denied him due process by suspending his license without allowing him the opportunity to defend himself. Despite Wassef’s claims, the appeals court wasn’t swayed, explaining that the board didn’t have to give him a hearing before entering the interim order and can summarily suspend a licensee when it concludes.

The state board had more than enough evidence to conclude that Dr. Wassef was unsafe to practice dentistry, the appeals court panel held. “Under these circumstances, the board was not required to accept Dr. Wassef’s explanations and Dr. Wassef did not disprove the board’s suspicions,” the panel held. “Thus, the dental board had reasonable grounds to take emergency action to prevent harm to the public.”

To read the decision on this matter, click here.

To read more on the repercussions of choices such as this, click here to read one of my prior blogs.

Serious Allegations Need Serious Legal Representation.

When a dentist, physician, nurse, psychologist, pharmacist, or other licensed health professional is accused of drug abuse or alcohol abuse, this is a very serious matter. As happened in this case, your license can be suspended putting you out of work and terminating your ability to pay for a legal defense.

Several things are a must. You must have good professional liability insurance that pays for the legal defense of complaints filed against your license, preferable with $50,000 or more of coverage for this type of event. Second, you must immediately retain experience health care legal counsel who deals with these types of cases routinely. Often there are options to such a harsh remedy as a suspension. Additionally, all the time spent from initial notification of the complaint, should be used in obtaining evidence to show that the dentist is not currently impaired. This can be routine random urinalysis testing, treatment with psychiatrist and certified addictions professionals, evaluation by special physicians health programs and other actions.

Usually, suspension is only appropriate when the physicians condition makes him an immediate threat to patient safety. Being able to prove that the physician is not a threat is te key to preventing a suspension. Also, using the time and money in appealing such a decision may, in may cases, be better used in requesting an emergency hearing and getting the evidence needed for that hearing.

Consult With An Attorney Experienced in the Representation of Dentists and Other Health Professionals.

The Health Law Firm routinely represents dentists, dental technicians, pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of dentistry hearings and other legal matters. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Posses, Shayna. “Ariz. Court Backs Dentist’s Suspension Over Dubious Scripts.” Law360. (December 13, 2016). Web.

“Arizona Court Backs Dentist’s Suspension.” Lexis Nexis. (December 13, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for dentists, defense attorney for dentists, legal counsel for dentists and dental assistants, defense attorney for health care professionals, DEA investigation defense attorney, legal representation for DEA investigations, legal representation for board investigations, defense attorney for board of dentistry matters, reviews of The Health Law Firm, The Health Law Firm attorney reviews, dental board defense work, dental board investigations, impaired dentists, impaired professionals, physician health programs, administrative hearings, complaint investigation defense attorney for dentists, appeals (and variations on appeal ) of adverse license action, license revocation, emergency suspension orders, appeals of emergency suspension orders, Professionals Resources Network (PRN) attorney, Florida dentist defense attorney, Virginia dentist defense lawyer, Louisiana dentist defense legal counsel, Colorado dentist defense lawyer, Kentucky legal dentist defense counsel, District of Columbia dentist legal representation

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

Former MetroHealth’s COO Charged In Dental Program Bribery Conspiracy

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Former MetroHealth Medical Center Chief Operating Officer (COO) and Dental Director Edward Hills was charged on October 25, 2016 for running a perplexed bribery and kickback conspiracy selling positions in the medical center’s residency program.  According to an unsealed indictment in Ohio federal court, three other former hospital dentists were also charged for being involved in the scheme.

Bribed With Cash and Lavish Gifts.

Hills also served as MetroHealth’s interim president and chief executive officer. Allegedly, Hills started receiving lavish gifts back in 2008. These gifts included a $3,879 Louis Vuitton briefcase, a 55-inch television, as well as cash and checks from the three dentists.  Since Hills was the director of MetroHealth Dental, he allegedly used his title to inflate monthly bonuses to $92,829. Hills also had residents working at private clinics and charged it to the hospital, according to the October 25, 2016 prosecutor’s statement.

Guaranteed A Spot In Dentistry Program.

Edward Hills solicited bribes from attending dentists Sari Alqsous, Yazan Al-Madani and Tariq Sayegh to pay them for working full-time at MetroHealth, while the three ran their own clinics.  Allegedly, Alqsous, Al-Madani and Sayegh were guaranteed residencies in the Dentistry program at MetroHealth by Hills in exchange for bribes.

Hills and the three other dentists are charged with Racketeer Influenced and Corrupt Organizations Act violations, multiple counts of conspiracy, mail fraud and obstruction of justice.  In addition, Hills is charged with making false claims on his tax returns. The monies coming from this kickbacks and bribes were also allegedly not included in his tax returns.

The three dentists, Alqsous, Al-Madani and Sayegh, also allegedly accepted more than $75,000 in bribes from the Jordanian perspective dental residents for admittance into the MetroHealth dental residency program. Hills took advantage of the residents even further by using unpaid dental residents to staff Alqsous and Al-Madani’s private clinics.

The indictment also states that Hills allegedly gave the attorney that was representing him in foreclosure proceedings free dental work including implants and crowns.  The dental work was done by another dentist who falsely claimed that the services were for educational purposes.

The IRS’ Kathy A. Enstrom from the criminal division stated, “These government-funded programs were designed to help the men, women and children of Cuyahoga County, but these individuals defrauded them for their own personal gain and used their companies as personal piggy banks.”

After more investigation into the scheme in 2014, Hills and the three dentist allegedly threatened anyone who had knowledge of their actions with criminal and civil litigation, termination and deportation.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide legal representation to dentists, dental hygienists and other health professionals being in licensure, administrative and criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals. We also represent professionals in defense of Medicare and Medicaid fraud allegations, actions for over payments, False Claims Act (whistle blower) cases, and civil monetary penalty cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of dentistry hearings and other legal matters. Call now or visit our website http://www.TheHealthLawFirm.com.

Sources:

Rhodes, Adam. “Ex-Hospital COO Indicted In Dental Program Bribery Scheme.” Law360. (October 25, 2016). Web.

Heisig, Eric. “Former MetroHealth Executive Arrested In Federal Criminal Probe.”Cleveland Court Justice. (October 25, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Dental Program Bribery Scheme, illegal kickback scheme to defraud the U.S. government, submitting false claims to the government, False Claims Act (FCA) defense attorney, legal representation for False Claims Act violations, medical education attorney, graduate medical education defense lawyer, legal representation for dentists, The Health Law Firm Reviews, health defense lawyer for dentists, defense lawyer for allegation of illegal kickback scheme, The Health Law Firm, reviews of The Health Law Firm, legal representation for illegal kickback allegations, The Health Law Firm attorney reviews, health fraud defense lawyer, The Health Law Firm reviews, medical student defense attorney, graduate medical education program lawyer, medical resident’s defense attorney, medical intern’s defense lawyer, medical fellow’s defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

 

Holding off a Professional License Revocation or Suspension During Appeal

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

If you are a physician, dentist, nurse, psychologist, pharmacist, physician assistant, nurse practitioner, massage therapist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. As a matter of course, you would be required to immediately stop practicing or risk being prosecuted for unlicensed practice, which is a felony. Although this blog deals with Florida law, similar relief may be available in other states, too.

One of the hardest things about having a license suspended or revoked is that it becomes effective immediately, whether there was a mistake, the action taken was erroneous or because of other reasons which may support an appeal. This cuts off the health professional’s sole source of income, which may also prevent you from having enough to pay for an appeal. If you have a thriving practice, this will usually destroy any value which your business has. Without income, paying your bills will be a challenge, much less paying the legal expenses to appeal or further fight the action that was taken.

Even if you appeal the decision and win the appeal, you will be out of practice for many months, often more than a year, before your license is reinstated. You still have all the lost income and business, and you never get this time and money back.

Fortunately, Florida law provides a remedy for temporary relief from the adverse decision, so that you may retain your license and practice your profession pending appeal of your case. This legal process is called a “writ of supersedeas.”

What is Supersedeas Relief?

Supersedeas relief is a form of relief granted by a reviewing court (court of appeal) that suspends the enforcement of the decision of the lower court (or agency) while the underlying issues are decided on appeal. What this means is that you can have the action to revoke or suspend your license put on hold while you appeal the decision of the Department of Health (DOH), in the case of a health care professional. The same applies to other professional licenses issued by other state agencies in Florida, as well.

Supersedeas relief is authorized in two separate locations in Florida law: Section 120.68(3), Florida Statutes, and Rule 9.190(e)(2)(C), Florida Rules of Appellate Procedure. Both of these provisions state that a reviewing court can grant a stay of enforcement of the revocation or suspension of a license pending review.

This relief is not automatic, however. You must request it. Additionally, both legal authorities specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. In most cases, this is not applicable. Regardless, it is the burden of the agency which has the order is being reviewed to prove that there is a danger to the public.

Additionally, the Appellate Rule permits you to ask for expedited review. (Which of course is recommended because you want to be back to work as quickly as possible, right?) This means that the agency only has ten (10) days to file its opposition and the appellate court will make an expedited decision on this. This shortened time period may make it difficult for an overworked government attorney to file on time or to produce quality opposition.

Steps to Seeking Supersedeas Relief.

Following are the steps which an experienced health lawyer or appellate lawyer would take to obtain such relief:

1. File an appeal of the Final Order revoking or suspending your license with the appropriate agency and a copy to the appellate court. Be sure to follow all appellate rules, local court rules and instructions.

2. File a Petition for Expedited Supersedeas Relief with the appellate court at the same time.

3. If you receive a favorable ruling from the court, deliver that order to the licensing agency (in this case, the DOH) and request that your license be reinstated immediately.

We do not recommend that you attempt to represent yourself on such matters. Appeals are complex and require an intimate knowledge of the law and appellate procedures. You should engage the services of an experienced health lawyer at the earliest possible opportunity.

Other Considerations.

It is important to note that this form of relief will not make the underlying disciplinary action disappear. Your return to practice will only be temporary, unless you win the appeal. You will still have to show the licensing agency did something contrary to law when it imposed the discipline in order for the appellate court to overturn the decision. This is not often an easy task. Furthermore, the law only permits a thirty (30) day window in which to appeal the agency’s decision, after which your rights are lost and you are very likely stuck with the decision.

Appeals Are Very Technical and Require a Thorough, Specialized Knowledge of the Law.

What few people understand is that appeals are very technical and have complex, procedural rules that you must follow. Additionally, appeals are decided based on errors made in applying the law in the case, not based on a dispute about the facts of the case. An appeal of an agency final order is not the place to argue about the facts of your case or to try to prove different facts. This is another reason that you should have an experienced health law attorney represent you and have a full, formal administrative hearing on the case. Given the fact that most appeals will not be successful (the appellate courts err to the side of assuming the lower court or agency made the correct decision), you need to aggressively litigate and defend the action against you to try to win at the hearing or agency level. To prevail on an appeal, the attorney must have a detailed knowledge of the correct, relevant court cases and must be able to argue these in the proper form in legal briefs.

An appeal is all about the laws that apply to your factual situation and the court cases that have interpreted those laws. Unless the agency made a legal error and violated the law, you won’t win. There are many other procedural steps you must follow in an appeal that only a good appellate attorney will know. To attempt to do this yourself is not advisable.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Key Words: revocation of medical license, suspension of medical license, supersedeas relief, revocation of dental license, revocation of nursing license, revocation of pharmacist license, revocation of health facility license, adverse agency action, health professional defense attorney, professional license defense lawyer, health care appellate attorney, appeals from adverse agency action, appeal from professional license discipline, appeal from final order, abating final order, suspending application of final order, Department of Health (DOH) defense attorney, license suspension attorney, legal representation on license revocation, license revocation defense counsel, health care appeals defense attorney

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

It is Always a Bad Idea For a Dentist To…

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In my 30 plus years of practice representing physicians, dentists, nurses and psychotherapists, I have defended clients involved in many different situations. Several of these seem to be problem areas which we see repeatedly.

Following is a list of those problems which it would seem to be common sense for a dentist or other health care professional to avoid doing. If you do any of these you can rest assured that you will eventually be confronted with charges and an investigation by your state licensing board, the Drug Enforcement Administration (DEA), your national certification board, any facility at which you have privileges and other law enforcement agencies.

I can assure you, it is always a bad idea for a dentist or other health care professional to:

1. Write a prescription for any medication for yourself.

2. Start a romantic relationship with a patient.

3. Take someone else’s prescription medication, ever.

4. Write a prescription for or treat a patient, especially a family member, for a condition outside the scope of his or her specialty (e.g., a dentist prescribing antibiotics to her children to treat a cold; a pediatrician prescribing pain medications for an adult; an OB/GYN prescribing antidepressants for a male).

5. Write any prescription for or treat any patient who is in another state when the dentist is not licensed in that state.

6. Treat or prescribe for any spouse, other family member, friend or colleague, without opening a medical record and fully documenting the treatment or prescription, as you would for any other patient.

7. Hire a patient to work for you in your office or allow a patient to “volunteer” to work in your office.

8. Pre-sign blank prescriptions for your Dental Assistant, ARNP, Medical Assistant, receptionist, or anyone else, to complete later.

9. Seek psychotherapy or drug/alcohol abuse treatment with a physician or HCP health professional in your own medical group, institution or the staff of your hospital.

10. Add to, alter or change any medical/dental record entry after you know there may be a claim, investigation or litigation involving it.

11. Take and use your own drug samples provided by pharmaceutical companies.

12. Go into a hospital where you do not have clinical privileges and treat or “assist” in treating a patient there, even if it is your own patient.

13. Have a sexual relationship ( including “sexting” or “telephone sex”) with a patient or patient’s immediate family member.

14. For a mental health professional (psychiatrist, psychologist, mental health counselor, social worker, psychiatric nurse practitioner) to have any type of social relationship with a current patient.

If you find yourself doing any of the items listed above, don’t wait until it’s too late. An experienced health care attorney can help guide and defend against licensing issues including investigations from your state licensing board and the DEA.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide legal representation to dentists, dental hygienists and other health professionals being in licensure, administrative and criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals. We also represent professionals in defense of Medicare and Medicaid fraud allegations, actions for overpayments, False Claims Act (whistle blower) cases, and civil monetary penalty cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of dentistry hearings and other legal matters. Call now or visit our website www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Items health care professionals should avoid doing, investigation by state licensing board, Drug Enforcement Administration (DEA), licensure defense for health care professionals, legal representation for health professionals, DOH investigations, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

Illinois Hospital Chain Pays Record $5.5 Million HIPAA Settlement For Privacy Breaches

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On August 4, 2016, one of Illinois’ largest hospital chains agreed to pay $5.5 million in settlement for lax data security and breaches of protected health information for millions of patients. This deal is a record payout under the Health Insurance Portability and Accountability Act (HIPAA), federal regulators said.

Advocate Health Care Network (Advocate), which operates 12 hospitals and hundreds of satellite locations in Illinois, agreed to the payout in connection with three separate data breaches that compromised the records of 4 million individuals at a medical group subsidiary. The affected private patient data included clinical information, health insurance information, credit card numbers and dates of birth, according to the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS).

The Investigation.

Investigations of those privacy and data breaches turned up additional problems for the large hospital chain. The OCR found Advocate did not adequately assess risks to so-called electronic protected health information, or ePHI. The hospital system also failed to properly limit access to electronic systems and failed to obtain an agreement with a business associate to safeguard ePHI.

“We hope this settlement sends a strong message to covered entities that they must engage in a comprehensive risk analysis and risk management to ensure that individuals’ ePHI is secure,” OCR Director Jocelyn Samuels said.


The HIPAA Settlement.

This recent settlement brings HIPAA payouts to $20.4 million so far in 2016. That far outpaces the previous annual record of $7.9 million total for all of 2014. The stiffer penalties come as the OCR is launching a wave of audits to measure HIPAA compliance, potentially giving even more backing to enforcement.

In a statement, Advocate said that it has since strengthened its data encryption efforts in response to the “ever-evolving digital landscape” in hopes of preventing further problems.  “While there continues to be no indication that the information was misused, we deeply regret any inconvenience this incident has caused our patients,” Advocate said.

According to the resolution agreement, the three privacy and data breaches occurred in 2013. One breach involved the theft of four laptop computers from an office building. A second involved unauthorized access onto a business associate’s computer network and a third stemmed from the theft of an unencrypted laptop computer from an Advocate employee’s unlocked vehicle. The majority of the 4 million individuals were affected by the first data breach.

Under the resolution agreement, Advocate committed to a number of security improvements, including a risk analysis of ePHI, a plan for managing security risks and an expanded program of HIPAA compliance training.

Click here to read the resolution agreement in full.

To read more on the importance of HIPAA and how to avoid violations, click here to read one of my prior blogs.


No Private Cause of Action (Right to Sue ) under HIPAA.

It is important to remember that neither the federal law itself, HIPAA (the abbreviation for the Health Insurance Portability and Accountability Act), nor the federal regulations which implement it, give an individual the right to sue for its violation.  Complaints on violations cane be filed with the Office of Civil Rights (OCR) which investigates such cases and issues fines, penalties, and takes other actions.  If an individual sues for a breach of his/her medical confidentiality, it is usually under the state’s law for the state in which it occurs.

If the facility is a federal facility (such as Veterans Administration (VA), Public Health Service (PHS), military hospitals and clinics, Indian Health Service (IHS)), then the federal Privacy Act of 1974 also provides the right to sue.  The Privacy Act contains provisions that set a minimum statutory damages as well as awards attorney’s fees and costs.  Recent cases in several states have allowed HIPAA to be used as a statute which establishes an affirmative duty the violation of which can then be pursued under state negligence law.


Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).  They also represent patients and plaintiffs in the case of major data breaches and individual breaches of medical privacy which result in damages or losses to the patient.

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Source:

Overley, Jeff. “Ill. Hospital Chain Inks Record $5.5M HIPAA Deal.” Law360. (August 4, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.


KeyWords: Health Insurance Portability and Accountability Act (HIPAA), legal defense for HIPAA violations, HIPAA defense attorney, HIPAA plaintiff’s attorney, breach of medical privacy attorney, patient data breach legal counsel, Electronic Protected Health Information (ePHI) attorney, suit for HIPAA violation, federal Privacy Act violation attorney, HIPAA compliance counsel, OCR HIPAA investigation defense attorney, HIPAA audit attorney, legal counsel for HIPAA compliance, health law defense lawyer, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 2016 The Health Law Firm. All rights reserved.

Dentists File Class Action Lawsuit Against 3M over Faulty Dental Crown Materials

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In April and May 2016, dentists from Florida, Georgia and Texas filed a class action lawsuits. Six suits have been filed in federal court in Minnesota against the Minneapolis-based 3M Co. (http://www.3m.com/). These have been consolidated by the federal court. Each of the complaints in these six cases alleges that 3M’s Lava Ultimate restorative material used to make dental crowns chair-side by dentists was defective. The suits claim the material contains defects that cause the crowns to de-bond inside patients’ mouths, come lose and need replacing. Therefore, dentists have been forced to cover the cost of replacing the crowns, according to the lawsuit. The first suit involving a Florida dentist, was actually filed in federal court in Miami.

It is clear that these cases will all proceed to litigation in federal court in Minnesota. The ones filed in the U.S. District Court in Minneapolis, Minnesota, were brought by three dentists and two dental practices for various causes of action related to the failed product.

“Defective” Lava Ultimate Dental Crown Materials.

According to what is alleged in the pleadings we have reviewed in these cases, 3M began an aggressive marketing campaign for its Lava Ultimate crown material in 2011. It claimed to dentists that the crowns produced with the restorative material provided unmatched aesthetics and durability for tooth restorations. However, the plaintiff dentists claim that crowns made with this material failed at rates of 50 percent or more, an unusually high percentage, requiring costly replacements.

As a result, 3M pulled the Lava Ultimate product for use in restorative crowns from the market in early 2016 and admitted that the product was “de-bonding at a higher-than anticipated rate.” “This suit involves hundreds of thousands of 3M Lava Ultimate restorations performed in dental practices throughout the country,” said one plaintiff’s attorney involved in the case. “Every day, dentists are replacing Lava Ultimate crowns at great expense to their practices and reputations– all because 3M put a faulty product on the market and continued to aggressively market it despite clear evidence that it failed at remarkable rates.”

3M sent a letter to dentists on June 12, 2015, alerting them to the “de-bonding” problem and advising them not to use Lava Ultimate for crowns. On June 15, 2015, the FDA classified 3M’s letter as a Class II recall.

According to the lawsuits filed, 3M had already distributed more than one million Lava Ultimate restorative kits at the time of the recall. The lawsuits also claim that the dental crown problems were immediately apparent and that 3M knew or should have known about the risk of failure but withheld information anyway.

False Advertising or Defective Marketing?

Additionally, the suits filed have accused 3M of marketing a product that it knew early on was defective and not able to stand up to its own warranty. The Plaintiffs claim that 3M settled many complaints privately out of court.

The lawsuits we have reviewed present claims against 3M for breach of warranty, violation of consumer protection laws, product liability, design defect, manufacturing defect, failure to warn, and unjust enrichment. Each of the separate lawsuits filed seek to represent all dentists who used Lava Ultimate for crowns on their patients.

Click here to see the court documents for the primary case filed in Minnesota.

To learn more about defective products and product liability, click here.

Contact an Attorney Experienced in Products Liability Litigation.

The Health Law Firm represents predominantly physicians, dentists and other health care providers. We are involved in products liability litigation. If you are a dentist who has used the 3M Lava Ultimate crown materials, contact us about filing claims and being part of the class action law suit that is currently under way.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

DePass, Dee. “Dentists sue 3M alleging defective crown materials.” Star Tribune. (May 17, 2016). Web.

Pound, Barry. “Dentists File Class-Action Lawsuit Against 3M over Faulty Dental Crowns.” PR Newswire. (May 17, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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