Healthcare Law

Tuesday, February 1, 2011


As part of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, patients are now subject to new rules governing reimbursement of the cost of certain over-the-counter (OTC) medications. These rules affect reimbursements under employer-sponsored health plans, health flexible spending arrangements (health FSAs), and health reimbursement arrangements (HRAs), as well as health savings accounts (HSAs) and Archer medical savings accounts (Archer MSAs).

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Thursday, October 21, 2010

CareCore National Law Suits

Weiss & Zarett, P.C. serves as co-counsel for plaintiff radiology groups, who have sued CareCore National and others for federal antitrust law violations. The case has been pending for several years, and on October 21, 2010, the Court issued a lengthy decision denying CareCore’s motion for summary judgment dismissing the action. Accordingly, the case will be proceeding to trial.  The court’s decision addresses issues of antitrust standing, injury and conspiracy, and provides meaningful guidance regarding the contours of federal antitrust jurisprudence in the healthcare industry.  For a copy of the decision, please click here

Thursday, October 21, 2010

St. Vincent’s Bankruptcy Case

Weiss & Zarett, P.C. is pleased to announce that on October 21, 2010, Bankruptcy Judge Cecilia G. Morris approved a settlement in the St. Vincent’s bankruptcy case – reached by the firm on behalf of hundreds of former St. Vincent’s medical residents and attending physicians – challenging the hospital’s initial refusal to purchase “tail” medical malpractice insurance coverage for those former physician employees. Absent this settlement, hundreds of the hospital’s prior residents and attending physicians would have been uninsured for future potential medical malpractice losses and accompanying damages.  The Order was issued out of the Southern District of New York Bankruptcy Court, following motion practice and settlement negotiations orchestrated by Weiss & Zarett, P.C., partner Michael D. Brofman, Esq.  Click here for a copy of the settlement news release

Sunday, August 1, 2010


A primary, if not preeminent, goal of every physician in practice today is the avoidance of a lawsuit for medical malpractice. In pursuit of that goal, the hard reality of practice dictates that risk management of medical malpractice claims falls directly upon, and is ever present with, every physician throughout each moment of rendering care. Understanding where the highest risk areas lie, and taking affirmative and aggressive measures to risk manage those prioritized threats, will provide physicians with the greatest protection toward avoiding a claim and/or being prepared to defend, and defeat, a claim that arises in spite of these measures.


  • 1Creating Medical Records That Are Not “Self-Protective” The initial “triage” of a potential medical malpractice claim is normally carried out by a physician or nurse retained by the attorneys representing the patient. These attorneys, seeking a financial recovery/gain, are not desirous of investing large sums of capital, resources and time into a claim which presents with a strong, defensible set of medical records.
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Sunday, August 1, 2010

How the Title of “Disruptive Physician” Can Ruin Your Career and How to Avoid It

In response to standards put forth by The Joint Commission, the American Medical Association, through its Council on Ethical and Judicial Affairs, continues to voice its ongoing support for use of the designation “Disruptive Physician” as a mechanism for potential discipline of physicians. In doing so, the AMA has created two distinct forms of “physician behaviors” upon which such actions can be based.


1. Inappropriate Conduct

Inappropriate behavior is conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive. This behavior can have a detrimental effect on relationships between healthcare practitioners.
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Tuesday, June 1, 2010


The “RAC” program (“Recovery Audit Contractors”) was instituted by the Center for Medicare & Medicaid Services (CMS) in order to identify improper Medicare payments and fight fraud, waste and abuse in the Medicare program. Since it is inevitable that almost all physicians who bill for Medicare services will be involved with a RAC audit in the future, it is imperative that every physician understand and be prepared for these investigative, and potentially invasive, audits.

RAC Audits: What are they?

RAC audits are specialized Medicare audits implemented with the goal of recovering “improper payments” to CMS which were not detected using previously existing error detection and prevention program efforts. These “improper payments” include both overpayments collected from all health care providers, as well as underpayments that may need to be repaid to health care providers, although the majority of the “improper payments” discovered and acted upon are for overpayments.

RAC Audits: Where did they come from?

The RAC program began as demonstration/pilot program in 2003 to detect and correct improper payments in the Medicare program.
Read more . . .

Saturday, May 1, 2010

An End to Class Action Abuse?

Tired of getting a two dollar coupon as your part of a class action settlement, while the lawyers get tens of millions in legal fees? The United States Supreme Court has just issued an opinion which may put an end to many of these abuses.

Class action lawyers have made hundreds of millions of dollars because courts have been willing to calculate legal fees either as percentage of the total recovery, or as a multiple of attorneys’ hourly fees. In some cases legal fees have even been calculated as a percentage of the estimated benefit of a settlement to the class, even where members of the class receive no money.

These huge fees have been justified by lawyers’ claims that class action lawsuits are highly complex, take a long time to resolve, and involve substantial risk. The Supreme Court has now rejected most of these arguments, finding that except in “rare and exceptional circumstances” payment of a reasonable hourly fee, based upon prevailing community rates, is all that class action lawyers can receive.

Read more . . .

Thursday, April 1, 2010

Is it Time to Opt Out of Medicare?

With the new federal health reform law, and recent announcements dramatically increasing the number of audits that Medicare will be conducting, through its vigilante “auditors”, is it time to consider opting out of Medicare?

In order to answer that question you first need to know your options. Most physicians are participating providers with Medicare. That allows them to accept assignment and receive payments directly from Medicare. An alternative is to change to non-participating status. The advantage of this is that you can charge your patients additional fees, up to the Medicare limiting charge.
Read more . . .

Thursday, April 1, 2010


Public Citizen, a consumer oriented Ralph Nader offspring, recently rated State Medical Boards throughout the nation. Alaska, with only 1885 physicians, was rated as having the “best” Board, based upon the Board having taken serious disciplinary actions against 14 physicians last year, and 7.89 actions per thousand physicians over the past three years. By contrast, Minnesota, with 17,977 physicians, was rated “worst” based upon only 26 serious disciplinary actions last year and 1.07 actions per thousand physicians over the past three years.
Read more . . .

Monday, March 1, 2010

Physicians as Targets: Insights, Hard Realities and How to Risk Manage Them.

Michael J. Schoppmann, Esq. Kern Augustine Conroy & Schoppmann, P.C.

In order to survive (and God willing, even possibly succeed) in today’s medicine, every physician must come to accept certain key insights and recognize certain hard realities.
Read more . . .

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