Question

John Smith, M.D. is an orthopedic surgeon and is the sole shareholder of Columbus Surgery Associates, Inc. (“Corporation”). The Corporation also employs a physician assistant named Francis Robins, who is licensed in Ohio as a physician assistant. Dr. Smith was first licensed by the State Medical Board of Ohio to practice medicine in 1991. He has had privileges at Franklin County Hospital since 1993 and also has privileges at the North Side Ambulatory Surgery Center since 1996, where he is a part-owner. In addition to being a Medicare/Medicaid eligible provider, Dr. Smith has a participating provider contract with Acme Health Insurance Company. In March, 2010, Dr. Smith forgot to renew his license to practice medicine for the two year term from March 2010 to March 2012 because his office had changed his mailing address and he had failed to notify the State Medical Board of the change in address. When the Board mailed his renewal application it was sent to his old practice address and was not forwarded to him.

Judy Johnson is a twenty-eight year old married woman, who works as a professional dancer, who injured her knee while skiing and contacted Dr. Smith’s office for an evaluation of her injury. Mrs. Johnson was referred to Dr. Smith by Acme Choice, her employer sponsored health plan for which Dr. Smith is a participating and preferred provider through the Acme Health Insurance Company. On June 5, 2010, Mrs. Johnson appeared for her appointment. Dr. Smith was called away to the hospital and the physician assistant, Ms. Robins, handled the appointment. Surgery on the knee was found by Ms. Robins to be necessary and she noted in the chart that Mrs. Johnson stated that she injured her knee “while skiing with her boyfriend.” At the appointment she signed the standard informed consent form used in Dr. Smith’s office authorizing the surgery. Dr. Smith referred Mrs. Johnson to the North Side Ambulatory Surgery Center for her surgery. On June 30, 2010, Mrs. Johnson’s surgery was performed at the North Side Ambulatory Surgery Center. Dr. Smith billed and collected his professional feet from Acme Health Insurance Company. The North Side Ambulatory Surgery Center building collected for its facility fee. The profit from the facility fee was distributed to Dr. Smith in proportion to his ownership interest in the North Side Ambulatory Surgery Center.

Following her surgery, Mrs. Johnson complained that as a result of the scare and the brace required post operatively that she cannot perform this season as a dancer. She stated that she had been told that the procedure would be performed using a particular technique and that she did not know that there would be an eight inch scare on the outside of her knee or that a brace would be necessary following the surgery. Mrs. Johnson called the office and asked that a copy of her chart be made and left at the front desk for her husband to pick up. The receptionist who took the call from Mrs. Johnson had a copy of the chart made, sealed and left at the front desk where Mr. Johnson picked up the chart that same day. Mr. Johnson opened the sealed envelope and examined the chart himself. Two weeks later Mr. Johnson hired a divorce attorney and separated from Mrs. Johnson. Please answer the following questions regarding this essay:

58.          Is Dr. Smith’s ownership in the surgery center and receipt of profits from the surgery center compliant with the Anti-Kickback Statute? If so, tell me why. If not, tell me why not:

59.          Can Mrs. Johnson take legal action against Acme Health Insurance Company for her damages claiming that its referral to Dr. Smith was negligent or constituted medical malpractice? If so, tell me why. If not, tell me why not:

60.          Before purchasing his interest in the surgery center, what steps should Dr. Smith have taken?

Additionally, please identify and explain five Health Law issues confronting the Corporation, Dr. Smith and Ms. Robins, which are implicated by the facts set forth in this essay. Please identify the issue on the first line and then explain your issue in the space following “Explain” – you may attach additional sheets if more space is needed:

61. Issue: _______________________________

Explain:

62. Issue: _______________________________

Explain:

63. Issue: _______________________________

Explain:

64. Issue: _______________________________

Explain:

65. Issue: _______________________________

Explain:

Answer 1