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Mistakes Physicians Make with Respect to their Malpractice Claims Print E-mail
Written by Mitchell F. Green, Esq.   
Friday, 01 October 2010 12:23

No matter how careful a physician is, chances are that during his or her career, he or she will be faced with a malpractice claim.  There are a number of do's and don'ts when the situation occurs.  Some of the biggest don'ts are as follows:

1.      Altering the Chart Notes - While facts may be remembered or are obvious, if they are not clear in the chart notes, it is possible to dictate and appropriately update notes.  However, backdating or alteration of notes can be disastrous.

2.      Failure to Ask the Insurance Carrier to Assign a Well-known and Qualified Defense Lawyer to Represent the Physician - Most malpractice carriers have a list of lawyers available in the physician's area to defend cases.  These lawyers vary by experience and have different philosophies regarding malpractice cases.  Physicians should ask their carrier early on to allow them and their other advisors to help select and maintain communications with assigned defense counsel, which can be an important step in avoiding or defending a malpractice claim.

3.      Failure To Have Private Counsel  - Lawyers assigned by malpractice carriers may be reluctant to take certain steps that may be beneficial to the physician, but might  make them less popular in the eyes of the carrier.  Private counsel may be able to demand that certain actions be taken during the defense process and can help look over the shoulder of the assigned counsel and strategize with same. 

4.      Failure to Request the Carrier to Settle the Case - It can make a big difference to the overall result whether a physician is settled out of the case, earlier rather than later, especially if a case is settled while the malpractice carrier is still solvent.  This also preserves the right to a bad faith claim against the insurance carrier if they have not taken all appropriate steps to settle the case within the policy limits.  On the other hand, asking the carrier not to settle can be detrimental to the physician in a number of ways.

5.      Failure to Take Steps to Protect Assets and the Medical Practice - Notification of a potential claim does not necessarily signal the end of the ability to take actions to protect assets and the medical practice from potential excess verdicts.  Though not as effective as steps taken prior to notification of a claim, a physician should still try to protect assets and the medical practice.  The ability to settle a case may hinge upon telling Plaintiff's counsel that there are no exposed assets, so that the policy limits and liabilities should be accepted. 

About the author: 

Mitchell F. Green, Esq. is a partner at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. located at:

4000 Hollywood Blvd. Suite 485 S
Hollywood, FL 33021

You can reach Mr. Green at 954-966-2112 or visit


Last Updated on Thursday, 07 October 2010 09:24
Breaking it Down: Analysis of billing options for Group Practice Print E-mail
Written by Amy Monagan   
Sunday, 08 August 2010 10:59

When it comes to payers in the health industry it's no secret that they have a tendency to withhold payment or underpay. With the national average of accounts receivables aged over 4 months standing at 17.7%, I think it's safe to say that everyone understands the need for billing management. However, when it comes to billing management there are a few different options that a provider can choose.

A physician can go online to Craigslist, find someone who has a billing background and knowledge of their software, and hire that person to be the in house biller.  This allows the physician tight supervision and transparency of work that is done.  On the other hand, I caution that you ensure the person hired has a fully working knowledge of billing.  I was speaking to an in house biller a few weeks ago and he honestly had no idea what a claim modifier was. Another consideration, will the in house biller have enough time and resources to follow up on every claim and every underpayment? While I am not trying to dissuade you from hiring your own biller, I'm simply giving you a bit more knowledge so you can be better informed when it comes to the billing operations in your practice.

The second option, a physician can choose to go with an outside billing company that uses the physician's technology. These tend to be smaller companies that will come to your practice and build the personal relationship with you and this has a very comforting effect. It's nice to have a relationship with the person who is handling the livelihood of the business.  The downside to this option is the limited resources. Being a smaller company they have X number of employees that can learn only so many systems.  It's difficult to learn and fully grasp different types of billing software for each client.  Also, do they have the resources to follow upon every claim and underpayment, what if that person goes on vacation or gets sick, who will follow up on your claims?  If you do choose this type of billing service remember to do your homework. There is no certification process in starting a billing company, just Google "how to start a billing company" and you'll get step by step instructions. So again, a little homework goes a long way if you choose this option for your practice.

Lastly, a physician can choose to go with an outside billing company that uses their own technology. These tend to be larger companies with hundreds of clients and hundreds of employees.  It goes without saying that the personal relationships with your biller diminishes greatly, but the personal service isn't completely gone.  The physician will have greater supervision and transparency than with the former due to reporting systems already in place. The technology allows for follow up on every claim whether the underpayment is larger or small. These larger companies are designed to level the playing field with the payers; they understand your contracts and what you are owed for your services.

Whether the physician chooses to go with either type of outsourced billing company, take a look at the % of their claims still unpaid after 4 months.  If it's higher than the national average, you may want to continue your search. Reason being, after 4 months it is unlikely that claim will be paid, so the higher percentage tells me the billing company isn't going to bat as often as they should. In today's economic times every penny counts and I would want my billing company to go after the money I'm owed.

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Last Updated on Sunday, 08 August 2010 11:15
Three Good Reasons that You Should Take a Salary from your Company Print E-mail
Written by Jeff Kramer, CPA   
Sunday, 08 August 2010 10:52

 First and foremost, if you operate an S corporation and have taken distributions, or draws, from the business, you could raise red flags with the IRS by having no salary. Disclosure of distributions is required on the corporate tax return, so the IRS is aware of payments. The following excerpt was taken directly form an S election acceptance notice received by a newly formed entity: 

"We would also like to take this opportunity to inform you of your tax obligations related to the payment of compensation to shareholder-employees of S corporations. When a shareholder-employee of an S corporation provides services to the S corporation, reasonable compensation generally needs to be paid. This compensation is subject to employment taxes. Tax practitioners and subchapter S shareholders need to be aware that Revenue Ruling 74-44 states that the Internal Revenue Service (IRS) will re-characterize small business corporation dividends paid to shareholders as salary when such dividends are paid to the shareholders in lieu of reasonable compensation for services. The IRS may also re-characterize distributions other than dividend distributions as salary. This position has been supported in several recent court decisions."

Another reason that may apply to you is payment of health insurance premiums. If you are paying for your own health insurance, including your spouse and/or children, you could be missing out on a large tax benefit by not taking salary from your company. Although health insurance payments are deducible on your personal return, they are limited on Schedule A by your adjusted gross income (AGI) and possibly phase-out limitations. Taking salary from your company in an amount greater than or equal to the annual health insurance premiums allows you to deduct them as a full adjustment against other income giving you a greater tax savings.

Lastly, if you have children/dependents under the age of 13 for which you incur child care expenses, both you and your spouse need to have a salary in order to deduct any qualifying payments.

As each situation is unique, please make sure to consult your tax advisor to ensure that you receive the appropriate tax advice.

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Last Updated on Thursday, 23 December 2010 06:54
I Now Pronounce You Physician and EMR? Print E-mail
Written by Amy Monagan   
Saturday, 31 July 2010 14:54

It's common knowledge that Electronic Medical Records systems are necessary to keep your practice running efficiently in today's society.  However, there are over 290 companies out there all stating that they have the "Best Solution," so how do you decide which one is right for you? Every EMR solution is different and some are better suited to certain practices, specific specialties, etc.  Finding the right EMR solution for your practice is much like finding your future husband or wife, there are so many things to consider and questions to ask before you make the leap.  So, before you say "I do" to your EMR I have some advice.

Narrowing down EMR systems that are suited for you has gotten very easy; the very first step I suggest is visit  This website offers a free service to physicians; you build a profile, and answer some questions about your practice and workflow.  Those answers are then analyzed and put through a logical unbiased matrix to determine which EMR vendors will be a potential match for you.  It has really gotten that simple.

Once you have narrowed your search down, visit, this website offers reviews on the EMR vendors. You can read for yourself what physicians are saying about their experiences with that EMR.  It's all there, the good, the bad, and the ugly.  Physicians review on a scale of 1-5 their experience with everything from ease of use, implementation, training, support, customer service, and so many other important items that you should take into account when considering your EMR vendor.

Remember, what Grandma always said: "running off to elope is bad" .  So that being said, keep these two essential tools in your back pocket. This way you can be fully prepared and informed when you are ready to make the EMR leap.

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Liability issues relating to healthcare professionals interaction with patient surrogates in FL Print E-mail
Written by Jeffrey Segal MD JD & Michael J. Sacopulos JD   
Sunday, 18 July 2010 16:37

             Patients suffering from serious illness often are unable to participate in their own healthcare.  From the physician's point of view, the incapacitated patient presents not only medical conditions in need of treatment but also legal issues to be addressed.  Physicians must turn to their patient's guardian, power of attorney, or surrogate for assistance in determining preferred course of treatment.  It is the legal issues related to the relationship between the physician, incapacitated patient, and surrogate that this article seeks to explore.

            Incapacitation of acute medical in-patients is significant.  Some studies place the percentage of incapacity amongst acute medical in-patients at forty percent (40%).[i]   These incapacitated patients and their physicians must rely upon surrogates to select and consent to a course of medical treatment.  Unfortunately, studies show that many patients and physicians are ill prepared to handle this situation. 

            The New York Times recently reported that many physicians, especially older ones and specialists, indicated that they would postpone conversations with terminally ill end-of-life patients.  These discussions frequently took place once no more treatment options were available and the patient had deteriorated. [ii]  It could be surmised from this that physicians may not be fully informed as to their incapacitated patient's wishes when entering into conversations with that patient's surrogate.

            Current studies reveal that patients are woefully unprepared should they need a surrogate to assist in their care.  One study found that physicians did not know whether a patient had a Living Will approximately thirty-five percent (35%) of the time.  In twenty-four percent (24%) of the time, a physician did not personally speak with the patient's surrogate.  In a full ten percent (10%) of cases, the physician could not even identify a patient surrogate.  Finally, when questioned, physicians reported sixty-nine percent (69%) of the time that their incapacitated patient either did not have a Durable Power of Attorney for Healthcare or if such a document existed, the physician was unaware of it. [iii]

            With these facts as a backdrop, it should be no surprise that physicians and patient surrogates experience some level of difficulty in communication.  Physicians reported that disagreements between themselves and surrogates were common.  However, it should be noted that "overt conflict" was rare, occurring only five percent (5%) of the time.  It is also been reported that agreement on medical treatment between physician and surrogate was less likely when physicians experience trouble contacting the surrogate.  Also, Asian physicians experience more difficulty reaching agreement with surrogates than their white colleagues.

          Even when communication went smoothly between the physician and patient's surrogate, many difficult decisions had to be made without any prior discussions with the patient as to healthcare preference.  Over fifty percent (50%) of the time, physicians and surrogates had either not discussed healthcare preferences and end-of-life issues with the patient or were unaware of the patient's desires as to these issues.  It should also be noted that physicians may be placed in a position of taking care of a patient in an acute condition with whom they had no pre-existing relationship.  This situation places the physician several steps removed from determining patients' preferences.  Obviously, this less than optimal condition is difficult for both physician and surrogate.  In fact, nearly one-quarter (1/4) of physicians felt that decision making in this circumstance caused them a great deal of distress. 


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About the Authors

Jeffrey Segal is a board-certified neurosurgeon who was educated at the University of Texas and the Baylor College of Medicine, earning  Phi Beta Kappa and AOA Medical Honor Society recognition. Dr. Segal is the founder and CEO of Medical Justice.

Michael J. Sacopulos is a partner with Sacopulos, Johnson & Sacopulos of Terre Haute, Indiana.His area of practice concentrates upon healthcare litigation including medical malpractice defense and third party payor issues.   He is General Counsel of Medical Justice Services, Inc.


Click here for information on Medical Justice. 

Contact via email or call 877.MED.JUST (877.633.5878). 


[i].         The Lancet, Prevalence of mental incapacity in medical inpatients and associated risk factors: cross-sectional study, Volume 364, Issue 9443, Pages 1421-1427, 16 October, 2004;

[ii].        The New York Times, Denise Grady, Facing End-of-Life Talks, Doctors Choose to Wait, 12 January, 2010;

[iii].       Journal of General Internal Medicine, Alexia M. Torke, M.D. MS, Physicians' Experience with Surrogate Decision Making for Hospitalized Adults, 25 July, 2009;



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