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About The Author:
Dr. Paul Bronston is a practicing emergency medicine physician who has national expertise in bad faith litigation involving health maintenance organizations (HMO’s) and insurance companies. Dr. Bronston is uniquely qualified to opine on the national standards used to assess the quality of care in these areas. His years of experience include service as the National Chairman of the Ethics and Professional Policy Committee of the American College of Medical Quality. This experience led him to assist the Division of Workers’ Compensation of the State of California in their development of a medical quality and utilization review process which insures that heath care organizations (HCO’s) in California base their decisions on proper medically based evaluations for injured workers and not solely on economic factors. These are some of the keywords associated with this expert's work experience and/or field of study: Expert Witnesses, Legal Experts, Consultants / Consulting, Litigation, Arbitrations, Depositions, Trials, Mediations, Courts, Forensics, Criminal Cases, Civil Cases, Law Suits, Testify / Testimony, Torts, Laws, Lawyers, Attorneys, Medical Malpractice, Hospitals, HMO's, Emergency / Emergencies, Medicines, Insurance, ERISA, Doctors / Physicians, National, Standards, Bad Faith, Liability, Nursing Homes, Health, Care, Paramedics, Nurses (RN's), Safety, Management, Administration, Managed, Maintenance, Organizations, Policies / Policy, Training, Procedures, Delivery, Systems, Services, Company / Companies, Quality, Assurances, Utilization Reviews, Medicare, Medicaid, Credentialing, Personnel, ER, HCO's, Rooms, Federal False Claims Act, Providers, Third, Party, Payers, Capitation, Risks, Pooling, Practices, Guidelines, Oversights, Reviews, CEO's, Reviewers, Gatekeepers, Physical, Personal, Injury / Injuries, IME's, Exams, Independent, EMS, Patients, Ambulances, Field, Medic, Life, Support, Trauma, Adults, Baby / Babies, Pediatrics, Childrens, Geriatric, Pre-hospital, 911 / 9-1-1, and EMT's.
This expert will consult with attorneys / clients that are located in: AK (Alaska), AL (Alabama), AR (Arkansas), AZ
(Arizona), CA (California), CO (Colorado), CT (Connecticut), DC (District of Columbia), DE (Delaware), FL (Florida), GA
(Georgia), HI (Hawaii), IA (Iowa), ID (Idaho), IL (Illinois), IN (Indiana), KS (Kansas), KY (Kentucky), LA (Louisiana), MA
(Massachusetts), MD (Maryland), ME (Maine), MI (Michigan), MN (Minnesota), MO (Missouri), MS (Mississippi), MT (Montana), NC
(North Carolina), ND (North Dakota), NE (Nebraska), NH (New Hampshire), NJ (New Jersey), NM (New Mexico), NV (Nevada), NY
(New York), OH (Ohio), OK (Oklahoma), OR (Oregon), PA (Pennsylvania), PR (Puerto Rico), RI (Rhode Island), SC (South
Carolina), SD (South Dakota), TN (Tennessee), TX (Texas), UT (Utah), VA (Virginia), VT (Vermont), WA (Washington), WI
(Wisconsin), WV (West Virginia), & WY (Wyoming).
In recent years there has been a significant expansion of potential liability under The Federal False Claims Act, in which the federal government is now viewing substandard medical care as if no medical care is being provided at all. If providers (including HMO’s) receive federal funds for Medicare / Medicaid beneficiaries and the care these beneficiaries receive is substandard, the federal government may look upon this as a violation of the Federal False Claims Act. The providers, including HMO’s, may then have a significant exposure to substantial fines and expulsion from these programs. In trying to contain costs, providers and payers still have to maintain the standard of care for the patient. As most providers know quite well, third party payers, and in particular, managed care organizations, often employ capitation, risk pooling, practice guidelines and utilization based oversight review systems to discourage providers from over utilizing medical care. If designed only to facilitate cost containment and not to provide quality of medical care, then these types of programs operate to alter the medical judgment of providers and produce medical decisions below the clinical standard of care. If providers allow defective cost containment programs to corrupt their judgment or cause them to practice below the standard of care, they will be increasingly exposed to malpractice liability as well as the potential for punitive damages in bad faith claims. As a result, providers must not assume that they are protected from liability if they change their behavior as a result of their participation in such programs. Provider exposure to punitive damages due in bad faith claims to the operation and implementation of defective cost containment programs at the expense of medical quality is a relatively new phenomenon. Not surprisingly, it developed in conjunction with the first cases where medical decision making by payers and managed care organizations, using improperly developed or applied oversight review systems, were successfully challenged. Taken together, these cases mandate that: (1) medical decision making (by providers, payers and reviewers) must produce determinations which meet the national clinical standard of care, and (2) cost containment programs may not operate to deny medically necessary, contractually covered benefits or otherwise corrupt the medical judgment of providers. Further, courts have found that where cost containment programs are knowingly designed and/or implemented to unreasonably deny medically necessary care and treatment, participants (CEO’s, medical directors, physician and nurse reviewers, and gatekeepers) in the defective review process can be liable for awards of punitive damages. Indemnification and/or malpractice insurance does not cover punitive damages. Courts have immunized payers from liability for the operation of defective cost containment programs covering private employer sponsored group health plans based upon federal ERISA preemption. Since most Americans (approximately seventy percent now) obtain their health insurance from private employer sponsored ERISA plans, providers will likely be the sole deep pockets for bad outcomes resulting from defective cost containment programs. Providers who disregard patient well-being based upon their participation in these defective systems can expect the worst if sued for their actions. As health care delivery continues to change, the parameters of provider liability will also change. With managed care systems assuming a dominant position in the health care delivery marketplace, the participating provider will be increasingly portrayed as a financially interested participant with disincentives to provide access to medically necessary standard of care treatment. As a result of these changes, the risks of malpractice and other forms of liability, to providers will increase. However, with the recent expansion of the Federal False Claims Act, traditional ERISA protection of HMO’s may be irrelevant. Providers and payers must therefore recognize that adherence to the standard of care in their medical decision making must not be violated regardless of the financial ramifications. |
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