Monthly Archives: September 2012

Record Keeping for the Veterinary Practice

All veterinary practices must comply with record-keeping requirements related to the practice of veterinary medicine. In order to do so, veterinarians must be up-to-date on the various record-keeping laws imposed upon them.

American Veterinary Medical Association (AVMA) Rules

The AVMA’s Principles of Veterinary Medical Ethics requires veterinarians to keep medical records if a veterinary-patient relationship (VCPR) exists. The AVMA recommends that veterinarians maintain patient records for a minimum of two (2) years. In Georgia, a veterinarian is required to keep patient records for at least three (3) years.

Information that is required to be kept includes the name, address, and telephone number of the veterinarian and patient, and identification of the animal treated. A veterinarian is also required to keep very good records of any drugs that may be used or prescribed for treatment.

Federal Record-Keeping Laws

There are specific Drug Enforcement Administration record-keeping requirements for controlled substances. Veterinarians, when distributing a controlled substance, must keep a record of the substance name, dosage form, quantity and number of commercial containers distributed or received, date, name, address, and DEA registration number of distributing practitioner and receiving practitioner.

These records must be maintained separately and be readily accessible for a minimum of two (2) years. A veterinarian may be subject to civil or criminal sanctions for failure to maintain and produce these records.

Georgia State Board of Veterinary Medicine Requirements                     

700-12-.04 Record Keeping – Complete, accurate, and legible records must be maintained on all animals. This information must include, but is not limited to, animal owner information, animal identification, and veterinary care. Under the Board’s rules, when a veterinarian dispenses a drug, a written record must be kept. The veterinarian must produce for a patient a copy of these records, if requested. 

700-8.01 Unprofessional Conduct – A veterinarian is required to prepare and maintain a record of the care and treatment of all animals treated in the practice. These records should contain clinical information sufficient to justify the diagnosis given and to warrant the treatment given to the animal.

These records must be kept in a readily retrievable form, and recorded contemporaneously, following treatment of the animal. Copies must be made available to the animal’s owner upon their written request. A reasonable fee may be charged for the search, retrieval, duplication and mailing of the records. Failure to keep records constitutes unprofessional conduct.

Sanctions by the Georgia Board for failure to provide records

If The State Board of Veterinary Medicine office receives a complaint against a veterinarian for failure to release records, the Board will send a letter to the veterinarian to release the records to the patient within 10 days of the Veterinarian’s receipt of the Board’s letter. The veterinarian must submit proof that the records have been mailed to the patient.

If the Board does not receive proof that the records have been mailed or a response from the veterinarian within 15 days from the date the request was mailed from the Board, the veterinarian may have his or her license sanctioned by the Board with a public reprimand, which becomes a permanent part of the veterinarian’s record and possibly pay a fine of $500.00.

Record-Keeping Checklist

– Make records contemporaneous with observations and treatment

– Note client decisions to not follow recommendations

– Treatments and diagnostics offered, and reasons for each

– Phone conversations regarding treatment

– Entries made in periods of absence or vacation

– Informed consent in writing to procedures, with a witness

– Instructions about drugs for food-producing animals with withdrawal periods

Conclusion

In order to minimize legal risk associated with practicing veterinary medicine, veterinarians should keep required documentation in proper order. Keeping well-kept records will reduce the risk of errors or omissions in records, miscommunication with patients, noncompliance, and any possible claim of negligence or malpractice on the part of the veterinarian. Well-kept records can be accomplished with a reliable entry system and a well-trained veterinary staff.

Protecting the Value of Your Practice: Non-Compete and Trade Secret Agreements

Veterinarians are often concerned about how to best protect their patient base when an associate veterinarian leaves the practice.  Owners of a veterinary practice want to ensure that an associate can not take the practices’ patient base [or employees] with them when they leave.  To prevent this devastation, each associate should be required to sign an employment agreement, which contains certain restrictive covenants.

Non-Compete Agreements

The owner of a veterinary practice may be familiar with various terms that are used in the protection of important practice assets, such as: non-compete agreement, non-compete clause, covenant not to compete, and restrictive covenant. These are all different terms used to essentially describe a non-compete agreement.  A non-compete provision is typically a paragraph inserted into an employment agreement.   However, a non-compete agreement may be a separate document which may be signed by the employee.  These agreements are usually signed when an employee begins his or her job.  A non-compete agreement allows the owner of a practice to limit a former employee or associate from starting his or her own business that competes with the former employer or from working for a competitor. 

A non-compete agreement must be reasonable in that it protects legitimate interests of the veterinary practice.  The veterinarian’s interest in protecting the time they put into training a new employee must be balanced by the employee’s freedom to work where they choose and the public’s interest in seeing a particular veterinarian.

A non-compete agreement must meet certain requirements before a court will uphold its validity. First, the court will look to the scope of a restriction, or the type of activity that is restricted.  If a veterinary practice only treats small animals, then in some cases, the non-compete may only prohibit the practice of small animal medicine for a specified period of time, leaving the former employee free to practice large animal medicine. 

The second requirement for an enforceable non-compete agreement is that it have a specific time limit.  The shorter the period of time, the more likely it will be enforced.  Typically, an agreement of two years or shorter will be considered valid.  Again, the interests of the parties must be balanced, allowing an employee freedom to continue to work and protecting the public’s interest in selecting a veterinarian. 

The third requirement for a valid non-compete agreement is that it contain a reasonable geographic limit.  When determining the geographic restraint, the employer should consider the number of clients that come from a five mile radius, ten mile radius, twenty mile radius, or other geographical area.  If a former employee moves to a veterinary practice within a ten mile radius of their previous employer, for example, and a non-compete agreement was in place prohibiting competition within a ten mile radius, the court would likely uphold the agreement as valid and issue an injunction against the former employee.  However, if the former practice purports to restrict the employee from practicing anywhere within a fifty mile radius, this non-compete would likely not be enforceable, as it is not reasonable. 

Should a court find that a requirement for a non-compete agreement is not met, the court may utilize the “blue pencil rule”.  This rule allows a judge to modify a contract that may be too burdensome on one party, and then enforce the remainder of the contract to make the agreement more reasonable. 

Non-compete agreements may be used not only when an employer/employee relationship exists, but also when a veterinarian practice is sold. If a veterinarian purchases a veterinary practice, the purchase price typically includes the “goodwill” and client patient base, of the practice.  However, without a prudent non-compete agreement, the selling veterinarian may open another veterinary practice across the street, which would be detrimental to the purchaser of a practice.  A non-compete agreement would prevent the seller from competing with the buyer in a specified geographic area for a limited period of time, which would allow the purchaser to establish his or her new practice.  

Additionally, when hiring a new employee, the owner of the practice should always ensure that the new employee is not subject to a non-compete agreement with his or her previous employer.  In some cases, a new employer may be held liable for hiring an employee who violates a non-compete agreement with a former employer. 

In order to maintain the financial stability of the practice, the owner of a veterinary practice should have an associate veterinarian sign an employee agreement which contains a non-compete and non-solicitation clause. In addition, all associates should be required to sign an employment agreement when they start their employment.  Without an employment agreement in place, the owner of a veterinary practice is exposed to unwanted risk and potential financial instability.  

Social Media and the Dental Practice

The online world is growing. Facebook now boasts a “population” larger than the United States. Thousands of dentists are currently taking advantage of social media (e.g. Facebook, Twitter, Youtube, LinkedIn, &c.) and smartphones. It is important to take a brief look at some important issues and areas of concern for dental professionals using or considering the use of social media to build and promote their public, patient, and employee relationships.

Public Relations

The advantages of a strong social media presence are clear. Information may be shared with colleagues to sustain camaraderie, with patients to strengthen dentist-patient relationships, and with the public to bolster your reputation. However, what may seem to be a cheap promotional tool can quickly become a costly defamatory weapon.  Having a strong social media presence is better than social media absence. However, as with any tool, it is best to educate yourself about the tool’s capabilities and drawbacks before its use. It is vitally important to consult with your legal advisers early and often when bringing your professional presence to an online forum.

Patient Relations

It is becoming more common that social media and smartphone user data is tagged with an increasing amount of detail, including the author, date, time, and even location of all uploaded Information. If the content of the information is also medical in nature, depending on the forum,the Health Information Portability and Accounting Act (HIPAA) may be implicated. Members of the dental profession should adhere to the following guidelines:

(a)  Dentists should be cognizant of standards of patient privacy and confidentiality that must be maintained in all environments, including online, and must refrain from posting identifiable patient information online.

(b) When using the Internet for social networking, dentists should use privacy settings to safeguard personal information and content. Dentists should routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and content posted about them by others, is accurate and appropriate.

(c) If dentists interact with patients on the Internet, dentists must maintain appropriate boundaries of the patient-dentist relationship.

(d) To maintain appropriate professional boundaries dentists should consider separating personal and professional content online.

(e) When dentists see content posted by colleagues that appear unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions.

(f) Dentists must recognize that actions online and content posted may negatively affect their reputations, may have consequences for their professional careers (particularly for dentists-in-training and dental students), and can undermine public trust in the dental profession.

When dental professionals provide a social media forum for patient feedback, they risk running afoul of HIPAA rules and regulations. Prior to building a social media presence, it is important to develop policies and procedures designed to guide appropriate use of the relevant forum. A few key points follow:

(1) Clearly define what permissions are voluntarily given or granted to the site administrator when a patient posts in the forum and explain how the posted information will be used (prior written consent is always best); (2) Specify what degree of privacy can be expected in the forum (most Internet forums are publicly available and publicly accessible); (3) Make it abundantly clear that any social media forum is not to be used for personal medical advice; (4) State that the social media forum is not monitored continuously or on a twenty-four hours a day, seven days a week basis; and (5) Post consistent policies in a prominent location on all social media sites, tailored to the relevant forum.

Above all, be clear with a disclaimer that patient information is personal and should never be shared via the Internet. Inform participants that any posting that appears to be a violation of this policy will be removed. Do not edit posts. If the content of a post is questionable, it should be deleted. Do not become the co-author of a potential HIPAA violation. Always take medical conversations offline.

Employee Relations

It is equally important to keep your employees from becoming lax about privacy rules when it comes to social media. Education is always the first line of defense when it comes to privacy and security safeguards. Make sure all employees are trained and up to date about the privacy and security rules and be sure to disseminate a written company policy outlining permissible and impermissible actions. Make social media training a part of your HIPAA compliance program.Social media is a powerful tool for expanding a dental practice, but be aware of the potential complications. Always consult your legal adviser before branching out into online forums.

Potential Legal Risks Associated wtih Groupon

With the explosion of social media and online marketing, members of the dental community “must” be aware of the risks associated with the new marketing.  While dental practices have successfully utilized the services of Groupon to attract new patients, there are growing concerns regarding this type of marketing.  The American Dental Association has recently published its opinion on the Groupon issue.  Before a dentist participates in a Groupon marketing campaign, they must be aware of potential ramifications. 

Fee-Splitting

A dentist utilizing Groupon to offer discounts to new and current patients will split a portion of the revenue generated from the promotion with Groupon.  Many states have regulations that prohibit fee splitting between a dentist and a third party.  A violation of the state regulations could result in the dentist facing censure and reprimand, fines, suspension, and even license revocation.

Federal Anti-Kickback Statute

The federal anti-kickback statute, 42 U.S.C. § 1320a-7b(b) generally prohibits a dentist from offering or paying remuneration to induce a person to refer a patient that may be eligible for services under a federal health care program, including Medicare or Medicaid.  A dentist violating federal law could be charged with a felony and subject to fines, imprisonment, and exclusion from federal health care programs. 

Most Favored Nations Clause

The terms of a dentist’s contract with third party payors [insurance carriers] may pose problems with the offer and award of Groupon’s discounts to patients.  Many insurance contracts provide that the dentist must provide the insurer with the best price that the dentist charges for a particular service (a “most favored nations” clause).  Providing a discounted rate to Groupon customers may breach the most favored nation provision in an insurance contract.  As a result, the dentist may be required to offer the same discount to the insurer’s patients.

ADA Ethical Rules

According to the American Dental Association Principles of Ethics and Code of Professional Conduct Section 4.E. Rebates and Split Fees, dentists “shall not accept or tender ‘rebates’ or ‘split fees’”. 

Dental Boards

Most dental boards provide that a dentist “shall not give rebates or split fees with a referral source”. 

Before a dentist enters in to or starts any type of marketing campaign [or social media campaign], they should seek legal advice as to the application of state and federal laws, the most favored nations clause, ADA Ethical rules and Dental Board rules.  While the marketing of any dental practice is important, an ill-advised marketing campaign could result in a dentist being censured, reprimanded, fined, suspended, and lose their license. 

Oral Cancer: Risk Management Considerations

Due to the increasing public concern regarding oral cancer, it is important for dentists to be aware of proper patient assessment and documentation procedures so that they may provide timely and proper treatment to their patients.  This article will provide some insight into potential claims and also provide risk management advice to help avoid these problems.

Oral Cancer Statistics

The U.S. Department of Health and Human Services states that oral pharyngeal cancers affect around 30,000 people per year in the United States, with around 8,000 of those cases resulting in death.  Most cases which result in death occur in people over 40 years of age and those with a history of smoking, regular alcohol use, or both.  Men are more likely than women to develop oral cancer.  A good deal of malpractice claims against dentists in the United States involve oral cancer cases. The complaints range from failure to diagnose to improper post-treatment dental care. 

Correct Patient Assessment

When assessing a patient and planning a treatment strategy, dentists should first carefully review the patient’s medical history to note any predisposing oral cancer factors.  Next, a comprehensive oral evaluation should be completed. This includes careful intraoral and extraoral examinations, including all parts of the tongue, floor of the mouth, the hard and soft palates, and palpitation of the nodes.

This full examination should be followed with a review of oral radiographic images in order to note any potential abnormalities in the bones and dentition of the patient.  The dentist should be sure to carefully and clearly document each area examined in the patient’s permanent record.  All abnormalities should be noted along with notation of all normal areas, as well. 

If an abnormality or suspicious lesion is found during the examination, the dentist should either properly refer the patient to a specialist for further examination and diagnosis or schedule the patient for a re-evaluation.  Failure to do one of these two procedures in a timely manner can result in more severe medical or dental consequences for the patient. 

Proper Documentation

In order to satisfy the basic standard of care, all dentists are required to perform these evaluations and note all the results from the examination in the patient’s permanent record. 

The dentist should further understand the need to take special precautions throughout treatment for certain medical conditions, including oral cancer.  This includes before, during, and after treatment of the patient.  When dealing with oral malignancies, these precautions may relate to the surgery, chemotherapy, or radiation therapy which a patient might be undergoing. 

In cancer cases, it is crucial that a treating dentist contact the patient’s oncologist to determine if any special precautions should be taken for the patient before and after undergoing medical treatment, such as chemotherapy. It is also essential that the medical history dictated in the patient’s record include information regarding whether or not the patient has undergone such medical treatment.  This record should also note any necessary precautions that should be taken in regard to the patient’s dental care.  Failure to take into account the patient’s medical condition and the necessary precautions because of the patient’s medical condition when providing treatment can result in complications involving both the dental and the medical care of the patient.  This, in turn, could provide a basis for a malpractice claim against the dentist.

Conclusion

Dentists must carefully follow all procedures in the practice in order to help them avoid legal pitfalls.  Properly assessing and examining the patient and documenting the patient’s record will not only keep the dentist out of legal trouble, but it will also provide the patient with positive dental care service.  In the case of oral cancer, following the proper procedures may allow a dentist to observe the abnormality in a timely manner, thus creating a better prognosis for the patient.