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Best Practices
Written by Jeffrey Cohen, Esq.   
Thursday, 05 May 2011 09:05


Though it is customary for many medical practices to pay its physicians as 1099 independent contractors (instead of W-2 employees), doing so can be very expensive because the IRS is expected to increase its investigations and enforcement actions in this area.

Small to mid-sized employers (especially in the areas of hospital based specialties) have traditionally had a very relaxed attitude about how their staff is paid. They figure "What's the big deal? What difference does it make if I pay someone as an independent contractor versus withholding taxes and paying them as a W-2 employee?" The answer: Plenty! Why? Because if the IRS determines a person is wrongfully characterized by the employer as an independent contractor, the employer would be responsible for all the employer related taxes plus penalties.  

Determining whether or not a person would be viewed as a W-2 employee instead of an independent contractor is not a simple thing. The "20 Point Test" typically used to guide the determination is not cut and dry. And tax advisors often advise "When in doubt, characterize the person as a W-2 employee, not as an independent contractor." That advice has never been more true than now, when our government is actively seeking ways to soothe our financial woes.

Though characterizing people as W-2 employees will impact retirement plans (given the discrimination testing requirements), mistaking employees for contractors will definitely sting! 

With over 20 years of healthcare law experience following his experience as legal counsel for the Florida Medical Association, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. With a strong background and expertise in transactional healthcare and corporate matters, particularly as they relate to physicians, Mr. Cohen's practice immerses him in regulatory, contract, corporate, compliance and employment related matters. He is the Founder of The Florida Healthcare Law Firm.

Cyber Discrimination: A New Frontier of Liability for Healthcare Providers (conclusion) Print E-mail
Written by Jeff Segal, MD, JD, FACS and Michael Sacopulos, JD   
Sunday, 01 May 2011 13:07

Continued from previous page.  CLICK HERE to read the article from the beginning.

Target is not the only organization whose website triggered a claim under the ADA. Southwest Airlines has been named as a defendant, as well as Twentieth Century Fox and Schering-Plough. It seems reasonable to anticipate a wave of litigation against healthcare providers that, in whole or in part, provide services to disabled individuals.

Title III of the ADA provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation….” 42 U.S.C. § 12182(a).  Is a website a public place?  There seems to be so strong arguments that a judge could say, "Yes." 

“I hope that legislation will come about requiring anyone on the internet to make his or her site accessible.  I am dreaming but it is a hope,” Jacobsen said.

Mindy’s hopes are not far off. In July of 2010 the Department of Justice (DOJ) published documents saying they are considering updating the ADA regulations so that it would explicitly state that both state and local government and places of public accommodations must make websites usable to people with disabilities. Public comments were accepted by the DOJ for an advanced notice through January, 2011. Many take this as a clear sign that rules applying ADA regulations to commercial websites are coming in the near future.

To help physicians get a jump start before legislation may take effect, there are a handful of easy changes to their websites to make them more accessible. First, physicians who already have a website should get it tested for accessibility.

Accessibility Partners is a company that helps organizations implement electronic and information technology accessibility solutions for people with disabilities. Their company hires people with and without disabilities to scan websites to make sure there are no kinks during operation.

“If somebody doesn’t have use of their hands and arms and they have some type of mobile disability, they might use some type of speech recognition to navigate the web. If they are trying to research a medical practice in their city and they Google it and doctors office comes up and they get to the website and the website is not accessible for them; it might be like getting to the door and having the door locked and having the doorbell be out of reach. So it kind of cuts off, unintentionally a whole population of potential clients,” Dana Marlowe with Accessibility Partners said.

A screen reader can read almost anything - eliminating barriers for the blind like Mindy; until it comes across a graphic with no behind the scenes description attached to it for the screen reader to read.

“When my screen reader encounters graphics, it can’t read them. So it just quiets down and doesn’t do anything,” Jacobsen said.

This encounter has been described more graphically by Premium Websites web designer Dotty Scott.

“It is like somebody reading off a Uniform Resource Locator (URL) that has a bunch of question marks and numbers, stuff that is not relevant to what they are looking for. Unfortunately, most websites are built that way, so the person is actually forced to sit and listen to all of that before they actually get to the information they are looking to find,” Scott said.

Scott encourages all web designers to experience a screen reader. Then it becomes obvious what they need to do.

“It was shocking and eye opening. It is amazing to me, the patience blind people have to find anything on the internet. It really is an eye opener,” Scott said.

Here are a few changes physicians can make to their website to make them more user friendly immediately.

·Provide text alternatives ("alt") for images and other non-text content.

·Make it easier for users to read text by using high contrast colors between the text and background, and making text resizable.

· Provide captions and other alternatives for multimedia.

·Use headings to group information and mark up the heading in the code.

·Make all functionality available from a keyboard, since some people cannot use a mouse.


W3C is the international organization that defines the standards for the web. Within the W3C is the Web Accessibility Initiative (WAI). The WAI's core mission is to make sure the web is accessible to those with disabilities.


WAI has developed web accessibility standards that organizations can follow, although WAI itself is not an enforcement body. The DOJ is considering using those standards in revising regulations for the Americans with Disabilities Act. Shawn Henry has been working to help organizations understand WAI's standards with the hope that many will make the changes on their own.


"Organizations would be wise to think about accessibility when they are updating their website, instead of waiting until they get a complaint," Henry said.


For more information on how to make a website more accessible visit:

Dr. Jeffrey Segal, MD, JD, is Chief Executive Officer and Founder of Medical Justice and is also a board-certified neurosurgeon.   Michael J. Sacopulos is a Partner with Sacopulos, Johnson & Sacopulos, in Terre Haute, Indiana. His core expertise is in medical malpractice defense and third party payment disputes. Sacopulos may be reached at

Last Updated on Sunday, 01 May 2011 13:46
Examining Patient Decision Making in Selecting a Provider Print E-mail
Written by Jeffrey Herschler   
Wednesday, 27 April 2011 16:24

According to a research report entitled Selecting a Provider: What Factors Influence Patients' Decision Making? published in the March/April edition of the Journal of Healthcare Management, reputation of organization and reputation of physician(s) are the chief drivers in choosing a provider.  The study was based on 467 survey respondents at a large academic medical center in Minnesota.  The respondents were mostly white (87%), well-educated (84% had at least some college), insured (100%) and healthy (73.4% were in good health or better).  The group was broadly diversified over the age spectrum.

"In Network", appointment availability and physician referral were close behind reputations as an impetus to facility or clinic selection.    Interestingly, cost is only a factor in 44.29% of provider choice decisions illustrating the fact that healthcare is currently not consumer driven as we rely on third party payers.  Only 24.2% reported using websites that report clinical quality data.  That number is sure to climb in future surveys.  Advertising comes in tenth as a decision motivator, again underscoring the lack of consumerism in healthcare.  This also suggests that providers will be well served by establishing their reputations, contracting with insurers and addressing service and logistical issues before committing to advertising campaigns.

Addressing Inappropriate Expert Testimony Print E-mail
Written by Mike Sacopulos, JD   
Wednesday, 30 March 2011 08:58

Medical Justice:   Medico-Legal Q&A   

Q:    Recently I sat through a medical malpractice trial as a defendant. The experience was awful. Without getting into the particulars of the case, the matter was advanced by my former patient's attorney and expert witness. In fact, the "expert" testified against me and stated some truly outrageous "facts." Further, this expert no longer practices surgery and never performed the procedure which was the subject of the case against me. This expert's said testimony was clearly out of bounds. The world is a worse place because of his existence. I would like to take action against him, but my attorney says I have no grounds to sue. Could this possibly be right? What legal actions do I have?

A:    I am sorry to hear your experience, but unfortunately I must tell you I am not surprised. I am sure that you feel victimized by the legal system. Now, hold on tight, you are not going to like the first part of my answer.

A party to a lawsuit does not have a legal right to sue the opposing party's witness. The basis is for this, is that you cannot sue an individual that owes no duty to you. Whether you like it or not, you have no right to sue the expert witness that testified against you in the malpractice case. This is a general principle of law that applies in all fifty states and has its origin in British common law from centuries ago.

However, you are not without some legal options. In many states, the offering of testimony as an expert witness is considered the "practice of medicine." This means that a licensing board can review an expert witness's testimony.  If the testimony is truly "out-of-bounds" as you described, a licensing board may sanction the expert witness for the testimony offered against you. Another powerful option is to initiate an action before the expert's professional society.

Starting in the 1990's, professional societies began implementing and enforcing codes of conduct. In the landmark case of Austin v. The American Academy of Neurological Surgeons, the 7th Circuit Court of Appeals found that professional societies have a right to discipline their members and uphold standards for the association. Many, if not most, of professional societies now have some form of disciplinary proceedings to address malicious or factually inaccurate testimony by one of its members. Punishments implemented by these professional societies range from a private reprimand to a permanent expulsion. Discipline by one of these organizations can do more than just professionally embarrass an expert witness. They tarnish the credentials of the expert witness as to make him or her no longer desirable to serve as an expert witness in other future medical malpractice cases.

These techniques and others have been successfully utilized by Medical Justice on behalf of its members. While you may not have a right to sue the expert, there are other avenues that can lead to justice. 

Mike Sacopulos, JD, is general counsel for Medical Justice.  Run by physicians for physicians, Medical Justice is a membership-based organization that offers proven services and proprietary methods to protect physicians' most valuable assets - their practice and reputation. The company offers proactive services to deter frivolous medical malpractice lawsuits prevent Internet defamation and provide proven strategies for successful counterclaim prosecution. Medical Justice works as a supplement to conventional professional liability insurance.

Have a legal question?  Just ASK MIKE and your question will be addressed in an upcoming issue of FHIweekly. 


Last Updated on Wednesday, 13 April 2011 15:21
Seven ways you could be wasting money on your malpractice insurance Print E-mail
Written by Matt Gracey   
Wednesday, 23 March 2011 08:04

Did you know that most doctors waste money on malpractice insurance, which is one of the largest expenses each year in a medical practice?

Here are just seven of the most common ways doctors continually spend too much:

1.     Not asking for all of the available credits

Most insurance companies offer multiple credits, ranging from discounts for claims-free history and practicing part time to discounts for society membership, and many others.  Never assume your credits are correct and always ask how your bottom-line premium was calculated and if there are any more credits to apply to lessen your rate.      

2.     Purchasing duplicate coverages

Some coverages that another agent may try to say are necessary as part of another type of policy can be included in a malpractice insurance policy, so make sure there is policy coordination to avoid duplicate expensive coverage. 

3.     Not considering a deductible

Taking a deductible basically hedges your insurance bet.  Your agent should perform a ten-year historical deductible analysis each year to give you a decision-making tool for this. 

4.     Not choosing your liability limits wisely

Some doctors prefer lower limits but think that they are restricted from lowering their limits by a hospital, managed-care company, research study group, or the like.  Often, simply negotiating a bit will eliminate these concerns and allow a practice to lower to a much-less-expensive limit.

5.     Not considering purchasing as part of a larger group

Purchasing coverage as a small practice is almost never as economical as doing so as part of a purchasing-group program, so find a broker versed in finding you such savings.

6.     Not fully understanding your most important coverage features

Many extremely costly mistakes can be made while purchasing a complex malpractice insurance policy.  A relatively easy amount of education will go a very long way in protecting your practice from defending an uninsured lawsuit or simply making costly mistakes comparing policy features like "tails", "triggers", and retroactive coverage. 

7.     Not working with the right agent or broker

 Find an independent agent specializing in malpractice insurance placement for your type of practice setting (solo, group, hospital, nursing home, etc.) and one who has an educational approach versus a sales orientation.  Your agent should be strong enough within the malpractice insurance marketplace to fully and competently negotiate the best rates for you with the top insurers in your state. 



Matt Gracey is a medical malpractice insurance specialist with Danna-Gracey, a boutique insurance agency specializing in medical malpractice and workers compensation for Florida's medical community. To contact him call (561) 276-3553 or (800) 966-2120, or e-mail

Last Updated on Wednesday, 30 March 2011 08:45
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