Legal considerations for health care providers in new era

By Gary Sastow

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The White Plains law firm of Brown, Gruttadaro, Gaujean, Prato & Sastow PLLC has a long and dedicated history of representing health care providers. Over the course of decades of legal practice in this area of the law, we have worked with health care providers as they manage their professional lives and navigate through the various trends that have taken place over the years. 

During the past several years, two particular areas have been very active. With the consolidation of medical practices and the rise of large group practices and hospital-owned practices in place of smaller independent practices, health care provider employment agreements have been receiving more focus. Another area of focus involves issues arising from the use of electronic medical records, which were introduced to health care practices several years ago.

As more health care providers are becoming employees of larger institutions, it is useful to address some aspects of these agreements from the perspective of the employee. It should be noted that employment agreements are usually prepared by the employer. It therefore stands to reason that the agreement is slanted in favor of protecting the employer. Accordingly, employees will be well served to pay attention not just to the basic employment terms such as compensation, vacation, etc., but also to the more legalistic aspects of the agreement.

Although sometimes overlooked as being “standard” or “boilerplate,” these provisions are worthy of review. It is often in these more legalistic sections that employees may find provisions that can be problematic. 

By way of example, what are the grounds for termination? What type of malpractice insurance is being provided and who will have to pay for tail insurance if a tail is needed? Are there restrictive covenants that restrict your ability to practice in the same geographic area should your employment with that employer terminate? Should new intellectual property be developed during your employment, who owns it?

And the list goes on. It is therefore prudent to not only review the agreement in its entirety but also to obtain legal assistance from an attorney skilled in this area of practice to advocate on your behalf.

As electronic medical records (EMR) become the norm, providers must be mindful of their legal implications. First, proper implementation of an EMR program is critical to avoiding risk. Providers are particularly vulnerable during the transitional period prior to the adoption of EMR, as hybrid health records — existing in both paper and electronic forms — can result in inconsistent patient information and the risk of error from learning a new technology is heightened.

In addition, the typical EMR system’s drop-down menus and prompts and cut-and-paste functions can lead to irrelevant, or worse, inaccurate patient information being carried forward in the record. Such “cloned” records can be problematic in court as they can lead to confusion.

Liability can also arise from inadequate security of EMR if, for example, the electronic record can be altered after the fact. Lastly, EMR may impact the standard of care for providers in that their interaction with the system, such as by overriding an alert or ignoring the program’s clinical decision support guidelines, could be viewed as a deviation.

Thus, while EMR has clear benefits, providers must be well-trained by the IT vendors providing and implementing their system and well-counseled by their attorneys and risk managers as to the legal pitfalls of deficient use of EMR.

Gary S. Sastow is a partner at Brown, Gruttadaro, Gaujean, Prato & Sastow PLLC in White Plains. He can be reached at 914-949-5300 or gsastow@bggplaw.com.

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