HEALTH LAW SUPPLEMENT Spring 2009

The Social Work Board clarifies supervisory requirements for LMSW’s. In recent communications available at its website, the Social Work Board has stated its interpretation of the supervision necessary for LMSW’s to provide clinical services to the public and to obtain the experience needed for progression to the LCSW license. The communications are available at: www.op.nysed.gov/swprivatepractice.htm. Except as grandparented, LMSW’s may not practice privately on their own, but may provide clinical services under supervision at a licensed healthcare facility or at the private practices of the LCSW’s, psychologists or psychiatrists who supervise them. However, there is a grandparenting provision that acknowledges that the above interpretation was not generally understood previously: LMSW’s who established private practices prior to February 2009 and employed a private supervisor may continue to practice in that manner until 2015, and may use that private supervision to qualify for the LCSW.

New York State has a new Power of Attorney Law. It’s at NY General Obligations Law Section 5-1501 et seq. Two facets of the new law are especially relevant. Those of you who have had the foresight to execute POA’s for yourselves so that a trusted family member or advisor can maintain your financial affairs if you’re unavailable or incapacitated should consider consulting with your attorneys about whether you should execute a new one. Old POA’s are still effective but the new ones have potentially broader scope.

The second reason, more pertinent to professional practice, is that the new POA form now extends coverage to medical records. The appointed agent, if the principal elects, will have status under HIPAA to obtain medical records of the principal. Under the law, the rationale for the agent’s ability to obtain medical records is that he or she will be empowered under the POA to make healthcare payment decisions and presumably cannot determine the reasonableness of medical bills without access to the medical records that support them. The agent under the POA cannot, however, make health care treatment decisions; that requires a Health Care Proxy. For mental health practitioners, some limitations may be imposed on the access of agents so that they are given enough information to make payment decisions but not sensitive and private treatment information that is unrelated to financial decision-making.

Potential liability for lost records. Clients ask what might happen to them if they lose treatment records of patients. For HIPAA compliant offices, any records maintained electronically must be backed up. But what about records maintained only on paper that are lost, stolen or destroyed by fire or water damage? And for small non-HIPAA compliant offices that maintain computer records, what about some kind of computer catastrophe?

If the loss of records is due to negligence on the part of the practitioner (e.g., leaving them in an unlocked car), and the lack of them results in some type of harm to a patient, then malpractice liability is possible. But the confluence of those two factors is unusual.

More usual is a lack of records when a practitioner is defending against allegations of malpractice or misconduct by a patient, or when records must be produced for a patient access request, subpoena or insurance audit. Because maintenance of records is legally mandatory, the lack of them can be used as evidence against healthcare practitioners in malpractice or misconduct proceedings under the “missing evidence rule” unless counter-evidence is produced that justifiably explains their absence. “Acts of God” such as floods or fires are such justification as is criminal victimization, but the practitioner would be expected to produce corroborative documentary evidence such as insurance claims for the water or fire damage, a police report for theft, or a repair bill for a computer that has crashed. Perhaps the most common cause of missing paper records that I hear, that they were lost in a move, usually requires an affidavit (sworn statement) of the practitioner as support to try to avoid negative consequences. In a reimbursement challenge by an insurance company, secondary evidence of services rendered such as appointment books and affidavits of patients may also be necessary.

Blogger Insurance. Some innovative clients in recent years have asked about the legal risks of creating blogs as marketing vehicles for their practices. The risks of professional liability for such blogs perhaps can be adequately dealt with by education, disclaimers, and caution. But there are other risks less under the control of the practitioner including allegations of defamation, invasion of privacy and copyright infringement. For example, someone blogging on your sponsored site might defame or publish private information about someone else, and you might be sued. Or someone might publish copyrighted material. Those possibilities might even have discouraged some clients from creating blogs. Now, for the first time to my knowledge, there is “blogging insurance.” It’s called Bloginsure, costs a few hundred dollars, and is offered by the Media Bloggers Association. They require that you take a risk management course first. I don’t recommend or endorse this insurance, but for bloggers and would-be bloggers it might be worth investigating.

New York Court extends immunity of expert witnesses to their written reports. One physician commenting as an opposing expert witness in a written report on the care of another physician made the expected negative statements about the clinical judgement of the other physician, but then went beyond the customary and said that the other physician’s particular type of misjudgement indicated that he also suffered from “…a certain lack of morality.” The criticized physician sued for defamation, alleging that the statement regarding his alleged immorality was unrelated to the medical issues in the legal proceeding and was made in a written report and not oral testimony, and therefore should not be protected by the immunity that ordinarily accompanies live expert testimony. The court affirmed the “absolute privilege” of expert witnesses; they simply cannot be sued for what they have either testified to or reported in writing. Kaisman v Carter, 831 NYS2d 348 (SCt, NY Cty, 2006).

Relatedly, in New York State if an expert has been appointed by the court, as is typically the case with court appointed impartial evaluators in custody and other family cases, then he or she would be protected by judicial immunity as well as expert witness immunity. Deed v Condrell, 579 NYS2d 930 (4 Dept, 1991).

The available forum for a review of the propriety of a testifying expert’s statements is an ethics committee of his or her profession, however limited its remedies.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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