Articles Posted in Improving Your Practice

Welcome to the first of our holiday-themed (at least in title) blog posts.  As we approach the holidays at the conclusion of a financially challenging year, cost savings may be on the minds of many indexhealthcare business owners.  Healthcare employers may be considering—or have already considered—measures to save money and reduce payroll.  2020 was a difficult year for most businesses, and reducing payroll is an oft-appealing way to reduce expenses.  Frequently, a business’s highest paid earners are also among the older employees.  That fact prompts a look at the Age Discrimination in Employment Act of 1975 (“ADEA”) prior to making any employment decisions, such as eliminating positions.

For healthcare employers with 20 or more employees, the ADEA governs and makes it an unlawful employment practice to “discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s age.”  29 U.S.C. § 623.  The regulations create a protected class for individuals who are “40 years or older.”  29 C.F.R. § 1625.2.  To be certain, the ADEA and accompanying regulations do not require preferential treatment of employees over 40, and “[f]avoring an older individual over a younger individual because of age is not unlawful discrimination.”  Id.

An employee establishes a prima facie case of age discrimination by showing he or she “was (1) a member of the protected age group, (2) subjected to an adverse employment action, (3) qualified to do the job, and (4) replaced by or otherwise lost a position to a younger individual.”  Johnson v. Unified Gov’t of Athens-Clarke Cnty., 209 F. Supp. 3d 1335, 1341–42 (M.D. Ga. 2016).  The fourth prong, however, is generally not satisfied when it comes to position eliminations because the older employee was not replaced by anyone.  See Mazzeo v. Color Resolutions Int’l, LLC, 746 F.2d 1264, 1271 (11th Cir. 2014).   The law accounts for this by altering the fourth prong in “reduction in force” cases, requiring the employee to “present sufficient evidence from which a reasonable jury could find that the employer intended to discriminate on the basis of age through its employment decision.”  Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1459 (11th Cir. 1997).  One such “method of establishing a nexus between age discrimination and adverse employment action is by statistical proof of a pattern of discrimination.”  Pace v. S. Ry. Sys., 701 F.2d 1383, 1388 (11th Cir. 1983).

Your reputation as a medical provider is a commodity you must protect, especially regarding your aptitude for providing patient care.  Of course, you may not be a perfect fit at every medical indexpractice.  When that happens, your employment may end, and you seek other employment.  No harm, no foul.

But what happens when your past employer provides a negative reference to your prospective employer?  Worse still, what if the reference falsely criticizes your competence as a medical provider?  And what if that false reference costs you the position?  Your past employer may be guilty of engaging in improper behavior providing you a remedy at law.

Defamation

1221952_to_sign_a_contract_3As a business and healthcare litigation firm focused exclusively on advising and representing health care providers, we work virtually every day with contracts that involve non-compete agreements and other forms of restrictive covenants.  Almost all physician employment, for example, will involve a physician employment agreement that contains a restrictive covenant.  Typically, a restrictive covenant will apply to prohibit certain competitive activities both during the employment and for some agreed period following employment, often one to three years.  The details of such agreements can vary dramatically and, contrary to the impressions of many medical practice owners and employed physicians, there are not “standard” provisions for duration, geographic scope, etc.  Further, Georgia and South Carolina case law and relevant statutory provisions are subject to interpretation, about which reasonable minds can often differ.

As a healthcare law firm, we are exposed to agreements on the transactional end, when the parties get married (i.e., when they sign the contract), and when they divorce (i.e., when the employment ends).  If a non-compete issue is raised at the end of the relationship, the implications for employer and employee can be severe and, in unfortunate cases, devolve into litigation.  For a highly compensated physician, whose ability to ply his/her trade following many years of education and training is suddenly impaired by the signed contract, whether to proceed with certain employment opportunities (that might violate a non-compete agreement) can make for a highly stressful decision-making process.  Some factors that physicians may consider follow.

Should you determine if the non-compete agreement is enforceable?

861958_hidoc-on-whiteBecause our healthcare law firm often handles employment-related disputes and litigation (for employers and employees alike), we follow developing trends in employment litigation. Employment discrimination lawsuits continue to make headlines in the healthcare industry. Between 2018 and 2019, numerous allegations regarding doctors, nurses, and administrative staff have resulted in litigation challenging existing employment practices of large network hospitals and small practices. For managers and owners of physician practices or small businesses, employment concerns should be regularly discussed with legal counsel.

Georgia Healthcare Business Litigation Attorneys

Over the last two years, a variety of claims have been brought forward by employees against their employers. The stories range from allegations of discrimination on the basis of sex, age, or race. For example, on April 26, 2019, employees of Mount Sinai Health System (Mount Sinai Health) filed a lawsuit in federal court alleging age and sex discrimination against female senior leaders of the health system. The lawsuit discussed practices that occurred under Dr. Prabhjot Singh’s management. Before the lawsuit, Dr. Singh served as the chair of the Department of Health System Design and Global Health. According to the lawsuit, numerous female employees were fired or forced to resign before being replaced by younger male employees. Furthermore, the lawsuit cites instances of Dr. Singh’s “screaming” and other aggressive behavior towards women on staff at Mount Sinai Health. On July 3, 2019, it was reported that Dr. Singh resigned from his position of leadership.

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to-sign-a-contract-2-1221951-mConsulting legal counsel to review a physician’s employment agreement before a dispute arises may increase a doctor’s negotiating power and help obtain better working conditions. Employment agreements contain many provisions, which may include: compensation arrangements, arbitration clauses, terms defining the scope of liability insurance, and non-compete agreements. As physicians in the workplace are tending to move away from working in solo practices, we are finding that hospital, health system and other corporate employment agreements containing non-compete clauses are becoming more prevalent.

The American Medical Association advises against physicians entering into restrictive non-compete agreements, saying that they “can disrupt continuity of care, and may limit access to care.”. While the AMA advises physicians to be cautious about unreasonable restrictions and those that limit patient choice of providers, generally speaking, non-compete agreements have been upheld and determined enforceable in courts. Courts can limit the enforcement of these agreements, however, if they deem the provisions unreasonable or too restrictive. Courts have varied in what they define as unreasonable or overly restrictive, in terms of duration and geographic radius.

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Healthcare employees filed the fourth largest number of sexual harassment claims with the EEOC from 2005 to 2015, according to Jocelyn Frye, a senior fellow at the Center for American Progress. As a result of the #MeToo movement, many healthcare organizations in Georgia are rethinking their sexual harassment policies, and employees are educating themselves on their rights. This post examines Georgia employees’ rights and how Georgia employers can reduce sexual harassment in the workplace.

Georgia Discrimination Laws

Georgia’s employment discrimination laws protecting employees in the private sector are limited to age, wage, and disability discrimination. Although Georgia’s Fair Employment Practices Act covers a wider range of protected classes, it only applies to state agencies with fifteen or more employees.

medical-doctor-1314903-m1Traditionally a hallmark of success for many physicians, physician ownership of medical practices continues to decline, for now, according to a recent study by the American Medical Association (AMA).  The AMA recently issued the results of a survey, entitled Policy Research Perspectives, Updated Data on Physician Practice Arrangements: Physician Ownership Drops Below 50%.

Physician and Medical Practice Attorneys

The survey evaluated, among other things, whether physicians fall into one of four categories as to a physician’s “main” practice: (1) whether the physician is an owner, employee, or independent contractor of the medical practice; (2) the type of medical practice; (3) ownership structure of the practice; and (4) how many physicians are in the practice.  The information and data reviewed spanned the period from 2012 to 2016.  The survey results confirm a continued trend favoring employment and larger practices.  2016 was the first year with survey results demonstrating that less than half of practicing doctors (about 47%) own their own practice.  Surveying over 30,000 physicians, the survey excluded physicians who work less than 20 hours/week providing patient care or are Federal employees.

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hammer-to-fall-673264-mOn January 19, 2017, the United States Department of Justice (DOJ) issued a press release announcing a deal reached with Costco Wholesale to resolve DOJ’s disputed allegations that Costco violated Federal law in filling prescriptions by lax protocol.  The allegations against Costco stem from an investigation by the United States Drug Enforcement Agency (DEA) Diversion Groups based in Seattle, Los Angeles, Sacramento and Detroit.

Georgia Healthcare and Business Litigation Law Firm

Our Atlanta and Augusta-based business law firm closely follows healthcare industry legal developments, including the healthcare fraud and abuse matters.  A strong focus of the DEA and supporting Federal and State law enforcement activities is the current epidemic of Opioid abuse in the United States.  According to the United States Centers for Disease Control and Prevention (CDC), deaths from Opioid overdose in the United States have quadrupled since 1999; and during the same period, sales of these drugs quadrupled.  The most common such Opioids are Methadone, Oxycodone and Hydrocodone.  “Pill mills” are a principal target of DEA and State law enforcement efforts.  To combat pill mills and other circumstances that may give rise to misuse of opioids and controlled substances, the DEA will pursue healthcare providers and entities that fail to strictly follow legal protocols in prescribing or dispensing controlled substances.

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US-SUP-CTThe United States Department of Health and Human Resources (HHS) and the United States Department of Justice (DOJ) recently issued a joint annual report for 2016 (the Report) providing details about the federal fraud and abuse program and, in particular, annual financial recoveries.  Fraud and abuse law enforcement efforts continued to be a top priority for the Federal Government and an important means of defraying the rising costs of our nation’s healthcare delivery system.  According to the Report, the Federal Government obtained over $2.5 billion in additional revenue in 2016 by way of health care fraud judgments and settlements.

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u-s-supreme-court-hallway-1224332-e1481731366543-272x300So much focus is placed on the federal “whistleblower” statute, the Federal False Claims Act, that similar acts, such as various States’ versions of the law, are often not as well known.  All have a common thread: they are a tool to recover tax payer money lost to fraudulent acts and serve to deter such fraud. Georgia has two false claims act statutes designed to combat fraud and abuse in Georgia.

Georgia Healthcare Whistleblower Law Attorneys

A brief history of this area of law puts the modern Federal and Georgia False Claims Acts in proper light.  The Federal False Claims Act was passed during the Civil War era in response to fraud by government contractors who seized the opportunity of intense government spending on the war to defraud the government.  An essential concept undergirding the earliest versions of the law was to create a financial incentive for one dishonest contractor — a “relator” — to turn in another.  Hence the original law (1863) provided that the relator could be paid up to one-half of the government’s recovery in a false claims act case.  The original law survived for decades as a remedial statute designed as a means for the Federal Government to recover what were thought to be, without the law, unrecoverable substantial losses for the treasury that attended dishonest acts. As one court explained:

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