S U P R A S P I N A T U S

Today's Philadelphia Inquirer has an interesting piece on a pilot project designed to resolve malpractice complaints without bitter litigation:

Doctors and lawyers in Montgomery County are doing something unusual: working together. Members of the county's bar association and medical society, along with Abington Memorial Hospital, today are launching a pilot project they hope will keep more malpractice disputes out of court.

Lawyers and doctors will work in teams to mediate conflicts between patients and the hospital or doctors. The hope is that the new approach will resolve problems more quickly and humanely, without the demonization of both sides that can occur in malpractice battles.

Read the rest here.

The New York Times reported Wednesday on a striking figure:

More than 2 percent of all doctors practicing in New York last year landed on the state medical board’s watch list because of problems including substance abuse, mental health concerns or their professional conduct.

While many were alarmed at the numbers, which are something like twice the national average, others were not:

Dr. Richard F. Daines, New York’s health commissioner, said "the higher numbers reflect active, good programs, rather than bad physicians."

Read the full story here.

The New York State Office of Medicaid Inspector General (OMIG) released its fiscal year 2008-09 workplan back in April. Page 29 of the report contains a summary of OMIGs efforts to follow OPMC and OPD disicplinary actions with exclusion from the state Medicaid program.

To protect the program and beneficiaries from providers who pose a risk, the OMIG has authority to exclude individuals and entities from participation in Medicaid. Providers are excluded for reasons that may include program-related convictions, patient abuse or neglect convictions, and licensing board disciplinary actions.

The OMIG uses referrals received from various federal, state and local agencies to determine as factors in determining whether or not to exclude a provider. It will continue to work with these agencies to ensure the timely referral of convictions, licensing board and administrative actions. OMIG excluded 657 individuals and entities from Medicaid in SFY 2006 and has implemented the exclusion of 668 individuals and entities in SFY 2007 as of February 6, 2008.

As appropriate, OMIG BIE staff has initiated an affirmative program to impose exclusions against individuals and entities that submitted false or fraudulent claims, failed to provide services that met professionally recognized standards of care, committed crimes or otherwise engaged in conduct actionable under NYCRR Title 18 or other statutes authorizing exclusions by OMIG.

The emphasis is added. See OMIG's workplan here.

According to OMIG sources, OMIG has initiated a pilot program and has advised OPMC and OPD that it will speak with defense counsel prior to execution of a disciplinary Consent Decree to assist defense counsel in assessing exclusion risk. OMIG will advise counsel that:

• Exclusion is likely;


• Exclusion is not likely; or


• Cannot make a call on the exclusion question.

OMIG has said it hopes the cases of "not being able to make a call" are rare. Defense counsel probably have a greater hope that the cases of OMIG saying "not likely" and then reneging are rarer still. Given that the OMIG assessment is to be provided before the disciplinary matter is concluded, one assumes naturally that the subjects of the disciplinary hearing will rely on the assessment in weighing their decision to submit to the decree. To that end, OMIG owes it to the subject provider to make as sound and genuine assessment as possible.

Hat tip: Jim Horwitz

In a broader light:The US Courts email news (11/23) notes that (1): A report to the Chief Justice says educating lawyers, clients, and judges should be part of the federal judiciary’s efforts toward cutting costs and delays in federal civil litigation. Excerpted (2) from the Report's topic of discovery:

Empirical studies conducted over the course of more than 40 years have shown that the discovery rules work well in most cases. But examining the cases in which discovery has been problematic because, for example, it was disproportionate or abusive, requires continuing work…rules alone cannot educate lawyers (or their clients) in the distinction between zealous advocacy and hyper-advocacy…

There was significant support across plaintiff and defense lines for more precise guidance in the rules on the obligation to preserve information relevant to litigation and the consequences of failing to do so….

On the need for strategies in addition to rule amendments:

The many possibilities for improving the administration of the present rules can be summarized in shorthand terms: cooperation, proportionality; and sustained, active, hands–on judicial case management. Many of the strategies for pursuing the possibilities lie outside the rule making process….

(1)http://www.uscourts.gov/News/NewsView/10-11-23/Report_on_Civil_Litigation_Education_Training_Keys_to_Improvement.aspx
(2)http://www.uscourts.gov/viewer.aspx?doc=/uscourts/RulesAndPolicies/rules/2010 report.pdfReport to the Chief Justice of the United States on the 2010 Conference on Civil Litigation, Submitted by the Judicial Conference Advisory Committee on Civil Rules and the Committee on Rules of Practice and Procedure-hosted at Duke U. Law School, May, 2010.