The Executive Council of the New York Society of Plastic Surgeons (NYSSPS), would like to thank all the residents and new members who joined us us at last week's Resident & New Member Night. We are honored to have had the opportunity to host such an great group of professionals.

We would also like to express our appreciation for your support of NYSSPS. Your participation within the association and your contributions to the plastic surgery community as a whole will shape the future of our field.

We look forward to continuing our collaboration and working together.

The New York State Society of Plastic Surgeons is busy growing and advocating for our members. 

This week NYSSPS spent the day at the New York State Capital and in the Legislative Office Building meeting with policymakers on issues affecting NYS Plastic Surgeons. 

The Albany Lobbying Day was a huge success.  The day was packed with meetings of the standing chairpersons of the Senate and Assembly health, insurance, and higher  education committees.  The Albany Agenda included priorities that affect physicians on a daily basis, such as prior authorization, truth in advertising, out-of-network reimbursement, access to breast reconstruction and patient safety, to name a few.   The coordination of the successful day was made possible by the organization of our Executive Director, Lisa Alteri and Capital Health Consulting with NYSSPS.  NYSSPS leadership thank the members that shared their time and their voice to advocate for NYS Plastic Surgeons.   We are excited to continue building relationships with New York State legislators and policymakers to create meaningful changes to improve plastic surgery care in the future!

Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

Informal, or “curbside,” consultations among healthcare practitioners represent an important part of clinical practice and help to promote a collegial relationship in both the clinic and hospital settings. These types of informal consultations can increase knowledge among practitioners and may also improve the care and treatment of patients who present with complex comorbidities, often resulting in more favorable outcomes. Informal consultations do, however, include inherent risks for the consulting practitioner. This article answers questions that our patient safety risk managers routinely address about the potential liability of unofficial professional consultations.

Do practitioners who provide curbside consultations risk being sued?

 

Risks are involved if the expectations between the practitioners are not clearly communicated at the outset of the dialogue. In a classic scenario, the consulting practitioner is sued by a patient the practitioner has neither met nor examined—and certainly doesn’t remember months or years later after a problem has developed and litigation has been initiated.

Invariably, the consulting practitioner who offered the informal advice made no written record of the encounter that could later support the basis for the recommendations. As a result, the consulting practitioner has little evidence to defend the care other than possibly relying on an established routine or habit and practice when attempting to explain the recommendations discussed. The risk of being named in litigation increases significantly if the requesting practitioner identifies the consulting practitioner by name in the patient’s record and summarizes the general nature of the conversation.

 

What are the legal issues raised by curbside consultations?

 

A consulting practitioner who provides informal advice could be named in a lawsuit if a patient suffers harm because the requesting practitioner relied on the consultant’s information to make a treatment decision. Both practitioners could be liable if the information failed to conform to community standards and was a proximate cause of the patient’s injury. The probability that both would be named as defendants would depend on the content of the documentation made regarding the consultation, the nature and extent of the patient’s injury, and the information revealed during litigation.

The preliminary legal questions to be evaluated in cases involving curbside consultations are: (1) Did a practitioner-patient relationship exist between the consulting practitioner and the patient, and (2) did the consulting practitioner, therefore, owe a duty of due care to the patient consistent with what similarly trained practitioners would have done under the same or similar circumstances?

For each affirmative response to the questions below, the likelihood increases that a curbside consulting practitioner could be named as a defendant and face possible monetary exposure for civil damages should the matter proceed to trial or arbitration:

• Did the requesting practitioner provide detailed facts that included the patient’s history, comorbidities, and laboratory data?
• Did the consultant personally review any portion of the patient’s record?
• Did the consultant speak directly with the patient or conduct even a cursory physical examination at bedside?
• Did the consultant recommend or order any specific tests, therapies, medications, or other treatment modalities?
• Did the consultant follow up with either the requesting practitioner or the patient?
• Most importantly, did the consultant submit a bill for services rendered?

What kinds of informal consultation cases have been litigated?

 

Our closed claims analyses revealed multiple cases in which informal consultations took place between practitioners and the patient ultimately suffered serious cardiac, obstetric, neurologic, hemodynamic, or other untoward sequelae. Both practitioners were named in the subsequent malpractice action. In some cases, the consulting practitioner shared in liability for the final outcome based on the degree of involvement. (See the factors outlined in the question above.)

Curbside consults have also moved to electronic communications. Does a practitioner’s professional liability insurance cover consulting with other practitioners through electronic means?

 

It does not matter if the curbside consultation is electronic (via email, text, or telephone) or an in-person, face-to-face encounter. Due to the advent of metadata technology, the electronic footprint of the interaction exists virtually forever. The issues with informal consultations, regardless of the mode, remain the same. The fact that an email, text, or other electronic format allows practitioners who are miles—or states—apart to communicate can, however, also lead to other issues, such as privileging, credentialing, and licensure in the state where the patient resides. Professional liability insurance does not typically cover a practitioner for practice in a state where the practitioner is not licensed. 

What patient safety issues are raised by curbside consultations?

 

From a patient safety standpoint, a verbal or electronic exchange between practitioners may lack the patient’s complete clinical picture (which should include a detailed history, an explanation of presenting signs and symptoms, identification of prescription and nonprescription medications, comorbidities, findings on physical examination, and related issues).

By responding without having all the pertinent information, the consulting practitioner may provide advice that is not in the best interests of the patient. It may result in an incorrect diagnosis, the formulation of an incorrect treatment plan, or a delay in ordering and implementing appropriate therapies. If the patient is harmed as a result, the consulting practitioner could be named as a defendant in a claim.

In analyzing closed claims, we have learned that incomplete or poor communication among practitioners is one of the leading causes of bad outcomes. This represents a major risk with informal consultations: Communication of all the necessary information to obtain and provide good clinical advice is critical.

What criteria can be used to determine whether a situation is low risk or one that requires a formal consultation?

 

If the requesting practitioner’s questions go beyond the low-risk scenarios described below, a formal consult should be obtained instead.

• Questions are for the general education of the requesting practitioner and are not specific to the patient.
• No request is made to confirm or make a diagnosis.
• No record review is required.
• No questions are raised about ordering specific tests or studies.
• The questions are straightforward and require only simple answers and nonspecific advice.

What can practitioners do to protect themselves?

 

At the outset of the encounter, clear communication must take place between the practitioners that identifies the nature of the inquiry and the type of guidance being solicited. Curbside consultations are tempting to busy practitioners because they are convenient and speedy—the very reasons to avoid engaging in this practice. Also, consulting practitioners are not compensated for the time, expertise, and potential liability exposure involved. If you decide to assume this risk, consider the following strategies:

• Clarify the nature of the consult; advise the requesting practitioner that a curbside consultation should not be considered a formal consultation.
• Consider the facts not provided.
• Keep the consultation brief.
• Make sure the requesting practitioner is aware that the advice given is not a treatment decision.
• Refrain from using email or text messages as a method of informal consultation. (For more information, see our article “Smartphones, Texts, and HIPAA: Strategies to Protect Patient Privacy.”)

If the requesting practitioner continues to insist that you render a treatment decision or makes serial inquiries about the same patient, we advise that you firmly but respectfully request making a formal and documented consultation instead. This approach helps to promote optimum patient care and protects the practitioners from possibly frivolous malpractice claims in the event of an unexpected or adverse outcome.

A bill that would have expanded New York's wrongful death law to cover emotional anguish and allow a broader set of people to bring claims was vetoed by Gov. Kathy Hochul on Monday night.

The move was not unexpected: Hochul on Monday had proposed a last-minute compromise with legislators that would have narrowed the focus of the bill and exempt medical malpractice claims. State lawmakers who sponsored the wrongful death proposal rejected the idea.

Hochul's veto of the measure, one of the final outstanding pieces of legislation last year and one of the more controversial to land on her desk, will likely be cheered by local government organizations, the insurance industry and medical groups that had opposed the bill on the grounds it would have led to higher insurance premiums as a result.

Current law covers claims under pecuniary, or financial, losses in wrongful death claims. The measure would have made it easier to bring lawsuits under emotional anguish claims in New York. The proposal would also have extended the statute of limitations from two years to 3-1/2 years in wrongful death cases.

In her veto message, Hochul wrote the law was approved last year by lawmakers "without a serious evaluation of these massive changes on the economy, small businesses, and the state's complex health care system."

Hochul added she's willing to continue talks over the proposal to reach a compromise.

Read the full article here

Today, the New York Daily News published an op-ed by Governor Kathy Hochul on the Grieving Families Act ahead of tonight's deadline for action. Text of the op-ed is available below and can be viewed online here

There has been much discussion about the merits of changing New York's wrongful death statute, first enacted in 1847. The law today allows individuals to recover monetary damages for the loss of a loved one, measured in economic impact, without compensating for the emotional toll.

As a parent, I know how precious our children are to us, and I know how devastating it must be for a family to learn that under New York law the life of their child is less valuable than someone older who earns a salary. I also recognize that the law as it currently stands, valuing lives based on earning potential, reinforces historic patterns of structural inequity and racism. This is one of many areas of unfairness that remain in our legal system, we must never give up on the important work of making needed change.

I have heard the painful stories from many families of children lost in devastating accidents, who simply want justice and to know that the life of their child has value in the eyes of the law. And I agree with them.

The question is how. Last year, the Legislature passed a bill, the Grieving Families Act, that would effectuate a complete overhaul of the wrongful death framework. It would dramatically expand beneficiaries, categories of damages, and the statute of limitations.

Experts have highlighted concerns that the unintended consequences of this far-reaching, expansive legislation would be significant. It is reasonable to think that the legislation as drafted will drive up already-high health insurance premiums, adding significant costs for many sectors of our economy, particularly hospitals that are still recovering from the pandemic and struggling to stay afloat — including public hospitals that serve disadvantaged communities. This is a question that would benefit from careful analysis before, not after, passing sweeping legislation.

This bill passed at the very end of the legislative session; the bill was approved in committee and voted on by both the Assembly and Senate, in full, on the very same day. What was missing was a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state's complex health care system.

This is an incredibly emotional and complex issue, and one that must be handled with thoughtfulness and balance: our goal must be to deliver justice for grieving families without sending the economy into distress.

I believe that families who have lost loved ones unjustly should be able to receive meaningful compensation, and want to do the hard work necessary to find solutions that strike the right balance. As a first step, I have suggested to the Legislature that we amend the legislation and sign into a law a version that would give parents of children who have tragically died in accidents the opportunity to seek meaningful accountability for their heart-wrenching loss while, for the time being, exempting far more costly medical malpractice claims.

This approach recognizes that expanding the wrongful death framework must be done in a methodical, smart way. It would give us time to look at data and grapple with complex issues, such as our state's unique constitutional prohibition against limits on damages.

Regardless of whether the Legislature agrees we should take some first steps toward expanding access to justice, the impacts of changing the wrongful death law in New York, looking at empirical data and the experiences of other states, should be analyzed. This will help ensure we have the information we are lacking now as we evaluate any more significant expansions to the law.

We must fully understand the impacts of potential changes on small businesses, families, doctors and nurses, struggling hospitals in underserved communities, and the overall economy to ensure that undesired consequences don't overshadow the good we can do for grieving families.

With no agreement to the fair proposal my administration made a month ago, there is a risk that the time will expire for action by midnight tonight. And that would be just one more insult to the grieving families that are looking to us to do the right thing.

I urge the Legislature to join me in taking a meaningful step forward so that parents who are grieving the loss of their children from accidents can finally receive justice they have been denied for the last 176 years.

The bill as it stands has serious problems -- but addressing them shouldn't be complicated.

Benjamin C. Zipursky
Jan. 22, 2023

Gov. Kathy Hochul apparently remains in a state of indecision about whether to sign the Grieving Families Act, a major overhaul of New York’s wrongful-death statute. The bill was first passed in June of 2022, but the governor was not able to decide by the year’s end, so she persuaded the state Senate to give her until January 30 to deliberate.

The governor is right to be ambivalent. New York’s law is badly in need of liberalization; it is perhaps the most regressive in the nation, and the Senate and Assembly were almost unanimous in passing this bill. Nonetheless, the insurance, medical, and business communities protesting its risks to New Yorkers are not crying wolf: The bill as it stands has deep flaws, and there is no reason to trust – as legislators sometimes propose – that the courts will be able to deal with the problems.

Read the full article here

Hochul should veto liability legislation
Neal Sullivan, Mahopac

In the face of stubbornly high costs, Gov. Kathy Hochul's veto is a powerful tool for fiscal responsibility.

The governor has already rejected legislation that would increase costs to consumers and the state. She should do the same with another bill headed to her desk that would make insurance dramatically more expensive.

The bill, known as S74A, would radically expand the size of awards in wrongful death litigation, as well as who can file such lawsuits. This will be a body blow to budgets for the state and local governments, which are often targeted in wrongful death claims.

But the damage doesn't stop there. Insurers will be forced to raise costs to cover inflated payouts. As a result, businesses will have to raise prices. Healthcare providers will have fewer resources available to care for patients. Meanwhile, governments will need to choose between cutting vital services and raising taxes.

Ordinary New Yorkers will pay the price.

Higher insurance costs will directly hit household budgets across New York.

According to an actuarial analysis by Milliman Inc., an 11.1 percent increase in annual premiums across the board is expected for residents and businesses. Given that about a third of American adults cannot cover a $400 emergency expense with cash alone, such an increase is a recipe for disaster.

With government and family budgets alike under strain, S74A will be catastrophic. Hochul must veto this bill.

The writer is past chairman of the Putnam County Legislature

Read additional opinions here

A state Supreme Court judge ruled on Friday that the Governor and the New York State Department of Health overstepped their authority when mandating COVID-19 vaccines for healthcare workers.

See the update here

On Dec. 30, 2022, Gov. Hochul signed a bill (A.286/S.1997) that amends New York Labor Law § 167. Originally enacted in 2009, Section 167 restricts “healthcare employers” from requiring nurses to work beyond their regularly scheduled hours, with four limited exceptions, where the overtime is during or due to:

1. A health care disaster that increases the need for healthcare personnel;
2. A federal, state or county declaration of emergency;
3. An unforeseen emergency, and necessary to provide safe patient care that could not be prudently planned for by the employer and does not regularly occur; or
4. An ongoing medical or surgical procedure in which the nurse is actively engaged and whose continued presence is needed to ensure the health and safety of the patient.

Read the full article here 

Governor Kathy Hochul today announced a series of bold proposals aimed at building a stronger health care system for New York State’s future and providing high-quality care for all New Yorkers as part of the 2023 State of the State. These proposals will transform the cost and delivery of care, address the most pressing health needs facing New Yorkers – especially those from underserved communities – and prepare for future public health emergencies.

“ Through wise investments, careful planning, and the devoted efforts of the health care workforce, New York’s health care system is among the best in the nation,” Governor Hochul said. “But as we quickly learned during the pandemic, there are disparities in this system and areas that are strained. These proposals seek to address existing gaps in care, while also planning for future needs, so that all New Yorkers have access to strong and equitable health care.”

Building on the historic $20 billion multi-year investment beginning in the FY 2023 Budget, Governor Hochul is proposing measures to build a comprehensive and evidence-based strategy for the health care system. These initiatives are also aimed at strengthening the foundation of the system to address the critical needs of New Yorkers and preparing for future emergencies by establishing a nation-leading public health disease monitoring and surveillance system.