Happy 2017!

Happy New Year!

Wishing you good times, good cheer, and a memorable 2017!

 

All of us at the Bennett Law Firm
want to thank you for your business, loyalty, and
support in 2016. Let’s make 2017 a great year together!

Get an Insider’s View of

The Texas Disciplinary Rules and Process

CLEonline.com is pleased to present a special online CLE program that describes the grievance disciplinary case involving Houston attorney Robert S. “Bob” Bennett, who was unjustly disbarred for the violation of Texas Disciplinary Rules of Professional Conduct 3.02 and 1.15(d). He appealed. Two years later, through his hard work and perseverance, Bennett’s reinstatement followed after a panel of the Fourteenth Court of Appeals reversed and remanded the decision. Bob is the only attorney in the history of the Texas Bar who has taken on the 100,000 member organization and won a reversal of disbarment.

Virtually all facets of the disciplinary process came into play from the time the grievance was filed until its conclusion, causing Bennett’s disbarment and reinstatement to comprise a case study of the Texas Disciplinary Rules and the grievance process, useful for any attorney who may be the subject of a grievance or avoidance thereof. This CLE is authored by Ethics Expert Lillian Hardwick. You can register for this seminar by clicking this CLE Seminar link.

If you need a CLE program regarding this topic, please let us know by contacting our office at (713) 225-6000 or by email at bob@bennettlawfirm.com.
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Reminder!

The Highland Lakes Bar Association CLE Event
Robert S. Bennett will be speaking at the Highland Lakes Bar Association’s CLE
event on Friday, January 27, 2017 in the meeting room in the back part of the restaurant. Lunch can be ordered from the menu.

Topic: “What You Need to Understand About the Office of the Chief Disciplinary Counsel to Protect Your Fees.”

When: Friday, January 27, 2017 at 12:15 pm to 2:15 pm.

Where: Francesco’s Italian Restaurant at 701 U.S. 281 North in Marble Falls, Texas 78654. It is in a small strip center on the east side of 281 south of the intersection of 281 and Highway 1431.

CLE: Course Starts at 12:15 p.m. 2 hour CLE Ethics.

Mr. Bennett, former Assistant United States Attorney, and former President of the University of Houston Law Center Alumni Association, will discuss what you should know and what you can do when your client starts complaining about your fee arrangement. Also covered will be how recent decisions have provided some guidance on when the Office of Chief Disciplinary Counsel believes a disciplinary rule has been violated, whether mediation should be used or not and lessons learned from his personal experience. Mr. Bennett will also will discuss fee agreements, recent grievance decisions, and possible reforms in the upcoming Texas Legislative Session.

Along with Mr. Bennett, Ethics Expert and Co-Presenter Lillian Hardwick will be speaking on her topic: “Pending Changes to the Attorney Disciplinary Rules & System.”

Her presentation will cover how the Legislature has conducted its Sunset Review of the State Bar of Texas and recommended changes to the way the attorney disciplinary rules are generated. Also covered will be the suggestions made in response to complaints from the public and grieved lawyers alike about ambiguities in how grievances are processed and how sanctions are assessed.

Paid 2017 member attendees will receive two (2) hours of free CLE credit reported direct to the State Bar. If you wish to be a member of the Highland Lakes Bar Association for 2017 dues are $50. You may bring a check payable to “HLBA” to the January meeting or mail it to:

The Highland Lakes Bar Association
P.O. Box 1044
Burnet, TX 78611

We hope to see you at the meeting!

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How to Handle a PDL from the Texas Board of Law Examiners
The Texas Board of Law Examiners (BLE) sends out a Preliminary Determination Letter (PDL) which may raise issues about your good moral character and/or fitness.

Does this mean you cannot become a lawyer?

Not necessarily. What it means is the BLE has some concerns that need to be addressed before you can become a licensed attorney.

Having gone through undergraduate school, having attended law school, having even passed the BAR, you will not become an attorney unless you get permission from the Texas State Board of Law Examiners. This means that you need to make an important business decision of whether you’re going to hire an attorney, whether you’re going to do this on your own, or whether you call Bennett Licensing Services and let us help you make the decision. We, of course, recommend hiring an attorney. Our firm has an unsurpassed success record with the Board. Bob Bennett and Bennett Licensing has 175 reviews on Avvo.com; more than any other attorney in Texas.

For more information, please watch on how to handle a PDL:

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Better Early than Late
by Tommy E. Swate M.D, J.D, SM.Hg

It is always an honor and privilege to be asked to represent a healthcare professional when he/she is being attacked by a licensing board at any stage of the proceeding. But so many times, I wish that our firm had been contacted at the earliest stage of the attack. This wish usually comes to mind at 2 a.m. in the morning when our firm is attempting to complete a motion or pleading due the next day. Many times physicians ask our help after a case has proceeded to an advanced stage. We are available to help at any stage of a proceeding, but would prefer earlier than later.

Just recently we were asked to prepare an appeal of a license revocation for a doctor just 48 hours prior to deadline for filing an appeal. At certain stages of a formal proceeding brought by the Texas Medical Board or any licensing Board there are deadlines to file certain motions and pleadings.
These deadlines are rigidly enforced against the healthcare professional. If you miss a deadline you lose, no matter how meritorious your case. If every issue is not included in the pleadings or motions you lose on the issues that are not plead. You may not get an opportunity to amend your pleadings in certain situations.

An example of this deadline situation is the requirement to file a Request for Rehearing after the Texas Medical Board has formally revoked a medical license. You might think that if you don’t file a Request for Rehearing you can just go directly to an appeal. This is not the case. The Request for Rehearing not only must be filed, but all issues you wish to appeal must be included in the Request for Rehearing.
In a recent case, the physician had defended himself before the State Office of Administrative Appeals. The physician had done an incredible job of defense, but the Administrative Judge found for the Texas Medical Board as you might expect. From talking with the physician, I found that the Board’s attorney had taken advantage of the physician’s lack of legal training every step of the way.

Just 48 hours prior to the deadline for filing a Request for Rehearing, the physician employed our firm. Of course he did not know about the various booby-trap deadlines. I certainly wished that he employed our firm early; so that I would not have been required to work “early”. If he had waited two more days his license revocation would have been permanent with a loss of his right to appeal the Texas Medical Board’s unjust actions.

Fortunately, we were able to file the Request for Rehearing and preserve his right to appeal the Texas Medical Board’s license revocation. The whole administrative scheme for revocations of a health care license is replete with booby traps for the unwary. These traps are designed to benefit the bureaucracy in its effort to further the government employee’s agenda.

I urge every healthcare professional that is threatened by a licensing board to contract legal representation as early as possible. Not only will you have a better chance of defeating the government bureaucracy, but it makes better emotional and financial sense for you to do so. Many professionals assume that when they receive correspondence from the Board that regulate their health care license that the “Board” is making the allegation after some consideration. This assumption is far from the truth; government employees are making the decisions. In most cases, the employees are not licensed in the practice area.

In this time of stress, you need clear heads guiding you to a successful outcome. If you need legal representation against a licensing board, don’t wait! Contact Attorney Tommy E. Swate for a free consultation by phone at 713-225-6000 or by email (swatemd@aol.com).

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Protecting Licenses Since 1974

Office Locations:
North Houston: 525 North Sam Houston Pkwy East, #570
Downtown: 401 Louisiana St #504
Austin and College Station by Appointment
Nationwide

Contact Information:
Office: 713.225.6000 Bob’s Cell Phone: 832.506.4592
Email: bob@bennettlawfirm.com
Website: bennettlawfirm.com

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Bob Bennett relies on his nearly 40 years of experience in his practice in defending professionals against allegations of professional misconduct. Moreover, he draws on the skill and dedication of other experts where appropriate.

Don’t let stress tie you down in 2017.  Bob Bennett understands the anxiety and insecurity that can accompany allegations of professional misconduct. Take action in 2017, and let us help you.

We have helped hundreds of professionals across numerous professions in a variety of licensure issues. We offer free initial consultations, flexible hours and a convenient office location in the historic district of Downtown Houston with ready access to parking and public transportation. Contact our office at 713-225-6000 or contact Bob Bennett at 832-506-4592 or by email: bob@bennettlawfirm.com to schedule an appointment to discuss your licensure issue with a compassionate and trustworthy expert.

Bob Bennett Licensing Services for Professionals, 525 N. Sam Houston Parkway East, Suite 570, Houston, TX 77060

bennett-bob-houston-schip

The S-Chip Debate & why Doctors Should Support Senator Kay Bailey Hutchinson

The S-Chip Debate & Why Doctors Should Support Senator Kay Bailey Hutchinson

 By Sherri R. Katz and Robert S. Bennett

bennett-bob-houston-schipThe S-CHIP (State Children’s Health Insurance Program) has been on the front burner in the news for months, and now has suffered a presidential veto. Initially, S-CHIP was created in 1997 as a bipartisan effort to provide insurance coverage for children living in families with too much income to qualify for Medicaid by not enough to afford private insurance. An estimated 91% of children who are insured by S-CHIP come from families with incomes below 200% of the federal poverty level, or $41,300 for a family of four in 2007(1). Before the enactment of S-CHIP, only eleven states covered children in families of 185% of the poverty level or higher. By 2006, forty-two (42) states covered children with family incomes of 200% of the poverty level, including seven states in which the cost of living is particularly high, which set income thresholds for S-CHIP eligibility at 300%.(2)

The original bill’s legal mandate expired September 30, 2007. Reauthorization of S-CHIP was attempted, although the most recent bill was vetoed by President Bush on October 3, 2007. That bill was a product of bipartisan negotiations, which included Charles Grassley, R-Iowa and Sen. Orrin Hatch, R-Utah. The original S-CHIP program covered approximately 6.6 million children nationwide.

kay-bob-bennett-houstonIn the most recent bill, strongly supported by our very own Senator Kay Bailey Hutchinson, R-Texas, Congress voted to appropriate $60 billion for S-CHIP over the next five years, which would allow the current regulations to stay in place and permit an additional four (4) million children nationwide to enroll. The appropriation would be funded by higher taxes on tobacco products by increasing the federal excise tax on cigarettes to $1.00 per pact, from the current $0.39 per pack.

Opposing the bill is U.S. Senator John Cornyn, R-Texas. He supports President Bush’s veto of the bill. Senator Charles E. Grassley, R-Iowa, helped write the bill, and has been quoted as saying “This bill is not socialized medicine.”

After vetoing the S-CHIP reauthorization, President Bush released a letter to Congress through the Office of the Press Secretary. In that letter, President Bush states that he is vetoing the bill “because this legislation would move health care in this country in the wrong direction.” President Bush ends his letter by stating “our goal should be to move children who have no health insurance to private coverage, not to move children who already have private health insurance to government coverage(3).”

President Bush and his allies have declined to support the measure, asserting that the reauthorization of S-CHIP at a substantially higher level of spending would “crowd out” private insurance in favor of public coverage and lead down a path to socialized medicine. However, according to America’s Health Insurance Plans, as reported in the New England Journal of Medicine, more than 70% of children whose coverage is through S-CHIP are part of private plans. President Bush’s 2008 budget proposed the addition of only $4.8 billion over the next five years, an amount that would fall well short of the monies needed to maintain the existing S-CHIP caseloads(4).

Given all the media attention on S-CHIP and children’s healthcare, from a health care provider’s perspective, it appears that the overriding question we should be asking is “how bad is children’s healthcare in the United States?”

A recent New England Journal of Medicine article published October 11, 2007(5), says that the state of children’s healthcare in this country is “far from optimal.” This comment comes as a result of conducting a study of medical records from 1,536 children who were randomly selected from twelve (12) metropolitan areas(6). On average, according to the data in the medical records, children in the study received 46.5% of the indicated care(7).

Because the health care of this country’s children is paramount, and amidst the political battles over ideologies and the S-CHIP program, several groups have come out in support of the bill. In addition, because the House democrats approved a more expansive version of the Senate bill by repealing an impending reduction in Medicare payments to physicians, the American Medical Association (AMA) and the AARP have come out in support of the bill. Other organizations that support the bipartisan S-CHIP expansion include Americans United for Change (AUC), MoveOn.org, Service Employees International Union (which claims over one million hospital workers as members), and the American Cancer Society’s Cancer Action Network. Most doctors would like to see that their patients had the insurance to pay for medical services.

 President Bush vetoed the bipartisan S-CHIP bill on October 3, 2007. Deputy Press secretary Tony Fratto quoted President Bush as saying he is “willing to work with members of both parties from both houses” on the issue. However, it appears that the GOP will have enough votes to sustain the veto of the program on the scheduled Thursday, October 18, 2007 vote. The bill was originally passed 265 to 159 in the House. Supporters of the bill need 290 yes votes to enact the bill over President Bush’s veto, if all 435 House members vote on Thursday.

Democrats and Republican supporters of the bill, including Senator Kay Bailey Hutchison hope to gather enough support to override that presidential veto. House Speaker Nancy Pelosi, D-Calif., has said about the vote to override the veto: “We’ll try very hard to override it. But one thing’s for sure: We won’t rest until those 10 million children have health care.”

Senator Hutchison has said she “of course” will vote to override President Bush’s veto of the children’s insurance program expansion that she has supported. Senator Hutchison was quoted in the Houston Chronicle as saying “I will, of course, vote to override, because I think that from my standpoint, I did the right thing”, adding that the S-CHIP reauthorization included proper limits, protection for Texas’ funding, and a way to reach children who still don’t have healthcare.

Ernest Istook, a former U.S. Congressman from Oklahoma, now a distinguished fellow at the Heritage Foundation, hails President Bush and his allies as heroes, not villains, in the ongoing S-CHIP saga. “They know that bigger SCHIP, like all bigger government, means the next generation will inherit the debt to pay for it.”(8)

But U.S. Senator Edward M. Kennedy, D-Mass., has an entirely different perspective. “This is all a matter of priorities: the cost of Iraq, $333 million a day; the cost of SCHIP, $19 million a day.”

In Texas, even if Congress cannot reach a compromise or if the presidential veto is not overridden, state officials have said that the state is unlikely to face cutbacks in its S-CHIP program. According to a spokeswoman for Texas Health and Human Services Commission, the state has sufficient funding from existing federal grants to continue the program for at least a year.

The struggle over the reauthorization of S-CHIP reflects the recurring national debate of the role that government should play in providing health coverage to all Americans, not just children. According to the New England Journal of Medicine(9), the growth of public healthcare has far outstripped private spending since 1965, because, in the absence of affordable private insurance, the federal government has expanded coverage of populations considered appropriate recipients of public support. This trend will only accelerate with the coming retirement of baby boomers.

But the question still remains: How bad IS children’s healthcare in the United States and what are we going to do about it? Senator Kay Bailey Hutchison and The American Medical Association appear to believe that supporting the reauthorization of S-CHIP is a good place to start. If, as a physician, you support Senator Hutchison’s position for children’s healthcare, please contact Senator John Cornyn at: www.cornyn.senate.gov or 517 Hart Senate Office Building, Washington D.C., 20510; 202-224-2934 and request he support overriding the S-CHIP presidential veto. For additional information about matters of interest to physicians go to www.bennettlawfirm.typepad.com or www.bennettlawfirmmed.com.

 

End Notes

 

1. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

2. Id.

3.President Bush’s Letter to Congress, from The White House, Office of the Press Secretary, for Immediate Release October 3, 2007.

4. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

5. The Quality of Ambulatory Care Delivered to Children in the United States by Rita Mangione-Smith, M.D., M.P.H,; Alison H. DeCristofaro, M.P.H.; Claude M. Setodji, Ph.D.; Joan Keesey, B.A.; David J. Klein, M.S.; John L. Adams, Ph.D.; Mark A. Schuster, M.D., Ph.D.; and Elizabeth A. McGlynn; Volume 357:1515-1523, October 11, 2007.

6. The NEJM study covered all children, even those covered by health insurance and those not eligible for SCHIP.

7. This average is from data indicating children received 67.6% of the indicated care for acute medical problems; data indicating children received 53.4% of the indicated care for chronic medical conditions; and from data indicating children received 40.7% for indicated preventive care.

8. “Left Loves S-CHIP”, by Ernest Istook, Nation Review Online (NRO), October 15, 2007.

9. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

The Poliner Case & Medical Peer Review

The Poliner Case & Medical Peer Review

By Sherri R. Katz & Robert S. Bennett

   Recently, there has been much discussion in the medical community, as well as many articles written in medical newsletters and publications about the Poliner case and medical peer review. This article will attempt to address what the Poliner decision means to a practicing physician in Texas concerning medical peer review.

Background on Poliner case

     In Poliner v. Texas Health Systems, No. 06-11235, 2008 WL 2815533 (5th Cir. July 23, 2008), the Fifth Circuit held that the Presbyterian Hospital of Dallas and three individual physicians for basically immune from money damages based on application of the federal Health Care Quality Improvement Act (HCQIA) immunity.  The Fifth Circuit reversed the $33.5 million damage award to Dr. Poliner, a physician who sued after his privileges were terminated.  The jury had originally awarded $360 million in damages, but this amount was later reduced by the trial court to $33.5 million.

     Dr. Poliner was an interventional cardiologist with a solo practice at the Presbyterian Hospital of Dallas.  While working in Presbyterian’s cardiac catherization lab, Dr. Polilner made a diagnostic error, missing the fact that a patient’s left anterior descending artery (“LAD”) was completely blocked.  The fact that the blocked LAD was apparent on films and should have been caught by Dr. Poliner called his abilities into question, and thus began the peer review process of Dr. Poliner at Presbyterian Hospital of Dallas.  In sum, the Chairman of the Internal Medicine Department asked Dr. Poliner to agree to a temporary restriction (abeyance) of his cath lab privileges pending investigation of the case, and explained that if Dr. Poliner did not assent, all of Dr. Poliner’s privileges would be summarily suspended.  Dr. Poliner accepted the abeyance, which imposed a temporary restriction of his privileges in the cath lab for 14 days.  Dr. Poliner, however, later contended in trial that this agreement was involuntary and amounted to a summary suspension for which he did not receive procedural rights.

      In the abeyance letter restricting his privileges, Dr. Poliner was advised of the patients of concern and he was told that an ad hoc committee of cardiologists were going to be appointed to conduct a review and that he would have an opportunity to respond to any concerns raised.  The ad hoc committee reviewed 44 of Dr. Poliner’s cases and concluded that he gave substandard care in more than half.  On the 13th day of the 14 day restriction, based on the review of the 44 cases, the Internal Medicine Advisory Committee recommended additional reviews and an extension of the restrictions on Dr. Poliner’s privileges.  Altogether, the restrictions on Dr. Poliner’s cath lab privileges were in place for approximately 29 days.

   On the 29th day, the Advisory Committee met and recommended a suspension of Dr. Poliner’s cath lab and echocardiogram privileges.  Dr. Poliner received a hearing concerning the suspension of his privileges five months later.  Several years later, Dr. Poliner sued the chairman of the Internal Medicine Department, Presbyterian Hospital of Dallas, and other doctors who had been involved in the peer review process.  Dr. Poliner claimed damages from the limited restrictions on his privileges, the extension of those restrictions, and the suspension of privileges.

     The case proceeded to jury trial on the alleged damages incurred from the 29 days of limited restrictions on Dr. Poliner’s privileges.  The jury found the hospital and the three defendant physicians were not entitled to immunity under HCQIA and Texas law, and the jury ultimately awarded Dr. Poliner $366 million in damages for defamation, mental anguish and punitive damages, which the trial court reduced to $33.5 million.  On appeal, the Fifth Circuit reversed the district court, holding that the defendants were immune under HCQIA.

HCQIA At-a-glance

     The Health Care Quality Improvement Act sets forth four requirements to obtain immunity for physicians and institutions participating in a peer review activity, which is called a “professional review action” in the HCQIA.  The HCQIA provides immunity from money damages to participants in the peer review process.  However, for the HCQIA immunity to apply, the peer review action must be taken:

1.  in the reasonable belief that the action is in the furtherance of quality health care;
2.  after a reasonable effort to obtain the facts of the matter;
3.  after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures are enacted as are fair to the physician under the circumstances; and
4.  in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3) above.

HCQIA applied to Dr. Poliner’s Case

     In the Poliner case, the Fifth Circuit made an analysis of each aspect of the Poliner peer review under the four prongs of the HCQIA.  The court did not seem to be persuaded by Dr. Poliner’s arguments that immunity was not warranted because he was not afforded full procedural rights and that the actions were taken because of anti-competitive reasons, not in furtherance of quality of care.

     The Fifth Circuit court ultimately found that the actions by the defendants were taken “in the reasonable belief the action was warranted by the facts known after such reasonable effort to obtain facts.”  The court joined other federal circuit courts in holding that the HCQIA reasonableness requirements are judged by an objective, rather than subjective standard.

Sham Peer Review

     In the opinion of many physicians, the Poliner case is one of the most egregious cases of sham peer review in recent history.   Many doctors hold the opinion that the original peer review process of Dr. Poliner involved the unwarranted summary abeyance  of Dr. Poliner’s privileges, and that Dr. Poliner claimed in his lawsuit that the defendants “improperly and maliciously used the peer review process to summarily suspend his privileges, thereby causing damage to his interventional cardiology practice.”

     Many believe that even though the Fifth Circuit ultimately overturned the jury verdict by granting immunity under the HCQIA, the jury verdict in the Poliner trial exposed and discredited a number of common sham peer review tactics in the trial itself.

Practical Considerations

The Fifth Circuit held that Dr. Poliner failed to rebut the presumption that the peer review action at Presbyterian Hospital complied with the HCQIA, and further held that the evidence “independently established” the actions complied with the statute.  However, the practicing physician in Texas subjected to any type of peer review actions should be educated with the lessons from the Poliner case.  Poliner reaffirms that in conducting what will be reviewed objectively for reasonable peer actions, participants, including the hospital, will continue to be immune from damage awards if sued by a responding physician.  However, HCQIA immunity is not automatic, and requires strict adherence with the terms of the Act.  Any physician facing hospital peer review should be mindful of the position of the courts regarding peer review and immunity, and remember that the HCQIA creates a rebuttable presumption that a peer review action is done for quality of care concerns, in favor of the hospital.

See Editorial:  Sham Peer Review: the Poliner Verdict, by Lawrence R. Huntoon, M.D., Ph.D., Journal of American Physicians and Surgeons, Volume II, Number 2, Summer 2006.

Robert Bennett and Sherri Katz practice law in Houston, Texas

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