Established in 1844, our Journal is one of the oldest in the country. To learn more about the Journal and how to submit articles, please visit https://lsms.org/page/JLSMS.
OF THE LOUISIANA STATE MEDICAL SOCIETY MAY 2019 | VOLUME 171 | NUMBER 1 JOURNAL
IN THIS ISSUE: DUE PROCESS RIGHTS FOR PHYSICIANS 2018 YEAR IN REVIEW HIGHLIGHTS FROM THE 2019 LSMS HOUSE OF DELEGATES CARDIOLOGY CASE: MYOCARDITIS PRESENTING AS CARDIAC ARREST
As an advocate for our policyholders, LAMMICO continually monitors and responds to legislative and judicial activity based on the best interests of our insureds. In the face of challenges to our Medical Malpractice Act and cap on damages, we only support changes to Louisiana’s medical professional liability system that do not increase the overall cost of malpractice coverage to our policyholders. At LAMMICO, it’s more than a little something extra. As an advocate for our policyholders, LAMMICO continually monitors and responds to legislative and judicial activity based on the best interests of our insureds. In the face of challenges to our Medical Malpractice Act and cap on damages, we only support changes to Louisiana’s medical professional liability system that do not increase the overall cost of malpractice coverage to our policyholders. At LAMMICO, it’s more than a little something extra.
HISTORY OF THE JOURNAL For 174 years, the Journal of the Louisiana State Medical Society has been providing valuable scientific articles and information to physicians. E stablished in 1844, the Journal is one of the oldest periodicals of its kind in the country, featuring scientific information on clinical trials and treatments. Originally founded as the New Orleans Medical and Surgical Journal , the publication was “devoted to the cultivation of medicine and the associated sciences.” In 1953, the name was changed to the Journal of the Louisiana State Medical Society . No matter what the name, the Journal is not only true to its original cause, but it has adapted to meet the needs of today’s physician. Continuing a proud tradition, the purposes of the Journal have been to serve as a repository of articles of interest to physicians and to serve as a means of communication among the members of the Louisiana State Medical Society. In keeping with the mission of the Journal to meet the needs of today’s physician, in 2019 and beyond, the Journal will transition to a membership publication for member news and information to keep LSMS members informed with the ongoing issues facing the practice of medicine in Louisiana and away from publishing scientific peer-reviewed medical manuscripts indexed in PubMed. Through its 174-year history, the Journal has published some truly remarkable works in the field of medicine. Keeping with trends of other state medical societies, the Journal is no longer indexed in PubMed and will only occasionally publish medical manuscripts from section editors without a PubMed ID number. The Journal transitioned to an electronic-only format in 2013 to strive to retain its status as one of the oldest medical journals in the country. Since then, there has been a shift in trends with respect to medical society publishing and indexing in the PubMed database. As of today, only four medical societies are indexed in PubMed, including the New England Journal of Medicine . Thank you for helpingmake the Journal of theLouisianaStateMedical Society oneof the longest running medical journals in the country. We look forward to providing the LSMS membership with a printed publication again in 2019. The cost of a printed Journal has dictated that we shorten each issue, thus, the decrease in the number of manuscripts published. The medical disciplines covered and the responsible section editors will be internal medicine, Fred A. Lopez, MD of LSU-New Orleans ; history of medicine, Hector Ventura, MD; pathology, Susan D. Veillon, MD, of LSU-Shreveport; imaging, Jeremy Nguyen, MD of Tulane; general surgery, John Hunt, MD of LSU-New Orleans; and cardiology, D. Luke Glancy, MD of LSU-New Orleans . The printed articles will rotate among the five disciplines and will be published online as well. The striking decrease in the number of articles published has made an editorial board obsolete. This, of course, was not always the case. For decades the Journal could not have functioned without a dedicated editorial board. We thank all of you. Please visit lsms.org for a list of those who have served on the Journal editorial board.
JOURNAL EDITORIAL STAFF
EDITOR D. LUKE GLANCY, MD
ASSOCIATE EDITOR L.W. JOHNSON, MD
CHIEF EXECUTIVE OFFICER JEFF WILLIAMS
MANAGING EDITOR/ ADVERTISING & SALES CHRISTOPHER LEBOUEF
EDITORIAL ASSISTANT GINA GARNER
JOURNAL BOARD OF TRUSTEES CHAIR, GEOFFREY W. GARRETT, MD VICE CHAIR, K. BARTON FARRIS, MD SECRETARY/TREASURER, RICHARD PADDOCK, MD ANTHONY P. BLALOCK, MD D. LUKE GLANCY, MD LESTER W. JOHNSON, MD FRED A. LOPEZ, MD LSMS 2019 BOARD OF GOVERNORS OFFICERS PRESIDENT, LEE STEVENS, MD PAST PRESIDENT, SUSAN BANKSTON, MD VICE PRESIDENT, R. REECE NEWSOME, MD SPEAKER OF THE HOUSE, PAUL PERKOWSKI, MD VICE SPEAKER, T. STEEN TRAWICK, MD SECRETARY/TREASURER, RICHARD PADDOCK, MD CHAIR, COL, DAVID BROUSSARD, MD COUNCILORS DISTRICT 1 MEMBER, GEORGE ELLIS, JR., MD DISTRICT 1 ALTERNATE, JUAN GERSHANIK, MD DISTRICT 2 MEMBER, ROBERT CHUGDEN, MD DISTRICT 2 ALTERNATE, VACANT DISTRICT 3 MEMBER, ALLEN VANDER, MD DISTRICT 3 ALTERNATE, MARK HEBERT, MD DISTRICT 4 MEMBER, F. JEFF WHITE, MD DISTRICT 4 ALTERNATE, SUSAN VEILLON, MD DISTRICT 5 MEMBER, ADRIENNE WILLIAMS, MD DISTRICT 5 ALTERNATE, GWEN JACKSON, MD DISTRICT 6 MEMBER, MICHAEL ROPPOLO, MD DISTRICT 6 ALTERNATE, AZEEN SADEGHIAN, MD DISTRICT 7 MEMBER, BRIAN GAMBORG, MD DISTRICT 7 ALTERNATE, YOKO BROUSSARD, MD DISTRICT 8 MEMBER, LANCE TEMPLETON, MD DISTRICT 8 ALTERNATE, VACANT DISTRICT 9 MEMBER, ANDY BLALOCK, MD DISTRICT 9 ALTERNATE, RODERICK CLARK, MD DISTRICT 10 MEMBER, NICHOLAS VIVIANA, MD DISTRICT 10 ALTERNATE, JEREMY HENDERSON, MD SENIOR PHYSICIAN MEMBER, ROBERT MCCORD, MD SENIOR PHYSICIAN ALTERNATE, IRVING BLATT, MD YOUNG PHYSICIAN MEMBER, AMBERLY NUNEZ, MD YOUNG PHYSICIAN ALTERNATE, VACANT RESIDENT/FELLOW MEMBER, KEN EHRHARDT, MD RES./FELLOW ALTERNATE, TRINATH KURUVELLA, MD MEDICAL STUDENT MEMBER, BLAKE DENLEY MEDICAL STUDENT ALTERNATE, BRYCE CHRISTENSEN
Christopher LeBouef, Managing Editor D. Luke Glancy, MD, Editor-in-Chief
Louisiana State Medical Political Action Committee (LAMPAC) is the largest physician-sponsored political action committee in Louisiana and has successfully supported physician-friendly candidates in the legislature. It is the leading political voice for all physicians in Louisiana, nomatter their specialty. LAMPACprotectsYOU, your PATIENTS, and your PROFESSIONby electing candidates who understand and are sympathetic to the practice pressures challenging today’s physician and to defeat those candidates who are not.
LOUISIANA STATE CAPITOL
JOIN US
MAY 22, 2019 TO PROTECT
THE PRACTICE OF MEDICINE.
FOR MORE INFORMATION, VISIT LSMS.ORG
CONTENTS 05. 08. 09. MESSAGE FROM THE LSMS PRESIDENT & LSMS EVP & CEO 2019 HOUSE OF DELEGATES MYOCARDITIS PRESENTING AS CARDIAC ARREST
10. 13.
2018 YEAR IN REVIEW
DUE PROCESS RIGHTS FOR PHYSICIANS
4 J LA MED SOC | VOL 171 | NO. 1
PRESIDENT’S PRESIDENT’S MESSAGE MESSAGE
Dear LSMS Members:
The first quarterly meeting of the LSMS Board of Governors was held in Baton Rouge on Wednesday, March 13, 2019, and the following actions were taken.
• The minutes of the Board of Governors meetings on December 22, 2018 and January 25, 2019 were approved as presented.
• Jeremy Henderson, MD, a pathologist from Covington, was appointed to a two-year term on the LSMS Board of Governors as the District 10 Alternate Councilor.
• James Christopher, MD, a general surgeon, also from Covington, was appointed to a two-year term on the LSMS Council on Legislation as the District 10 Alternate Councilor.
• Directed the LSMS Executive Vice President to keep working on a multi-employer 401(k) option as a future member benefit of the Society with a report back to the Board.
• Directed the LSMS Executive Vice President to formally request the LSMS Medical/Legal Interprofessional Committee to include the recently revised informed consent documents, as well as, the new LSBME rules related to due process rights for physicians be included in the 2019 update to the Medical/ Legal Interprofessional Code
• If legislation is introduced during the 2019 legislative session to make Louisiana a state that participates in the Interstate Medical Licensure Compact, the LSMS will support the direction and position of the Louisiana State Board of Medical Examiners on the issue.
• Reaffirmed LSMS Policy 10.02, which states the LSMS is opposed to the Healthy Louisiana Medicaid program and/or the Louisiana Department of Health funding of abortions.
• Adopted new policy stating the LSMS does not support work requirements as a criterion for Medicaid eligibility.
• Informed the American Medical Association’s (AMA) Litigation Center that the LSMS did not wish to be a party to an amicus brief being filed jointly by the AMA and the American College of Obstetricians and Gynecologists in the case of June Medical Center v Gee. Additionally, voted to notify the AMA Litigation Center that they were free to file the amicus brief without including the LSMS if they so choose. • The board also received updates and discussed current activities related to: the new D.O. school in Monroe, HealthSYNC of Louisiana, a LSMS sponsored IPA, the LSBME, the Louisiana Patients Compensation Fund (PCF) Oversight Board, outstanding LSMS directives from 2018 and 2019, the 2018 financial and operational audit and the January 2019 financial statements of the Louisiana State Medical Society and its affiliates.
Lee Stevens, MD President
EXECUTIVE VICE PRESIDENT’S
EVP’S MESSAGE
MESSAGE
Four years after the passage of MACRA, the Medicare Access and CHIP Reauthorization Act, over half of the physicians surveyed nationally are still either “slightly familiar”or “not at all familiar”with the law or the resulting Quality Payment Program (QPP). The LSMS does not want any Louisiana physicians to fall into either of these two categories, which is why we’ve been working hard to gather and produce resources that help our members make sure they are meeting the requirements of QPP and not being subjected to unnecessary penalties. With a patient population that’s among many of the sickest in the nation, a Louisiana physician may have to work twice as smart to get the same reimbursement as their colleagues in other states. Therefore, if you haven’t already, I urge you visit lsms.org and explore our MACRA QPP resource center in conjunction with the Physicians Advocacy Institute. Additionally, please review the recent letter we sent along with several other states to CMS outlining our on-going concerns with QPP. Last, and maybe most important, visit healthsyncla.com where you’ll glean valuable information about how our physician-led HIE product and help equip you for QPP while at the same time giving you access to missing clinical data on your patients.
JeffWilliams Executive Vice President
J LA MED SOC VOL 171 MAY 2019 5 5 J LA MED SOC | VOL 171 | NO. 1
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CARDIOLOGY CASE:
MYOCARDITIS PRESENTING AS SUDDEN CARDIAC ARREST Avaneesh Jakkoju, MD, Robert O. Drutel, MD, Jameel Ahmed, MD, Pedro R. Cox-Alomar, MD, Paul A. LeLorier, MD, and D. Luke Glancy, MD
A 17-year-old woman with no significant past medical history was transferred from another hospital for further management after a cardiac arrest. For several weeks the patient had been taking an over-the-counter weight- loss supplement called Xenadrine, which contains turmeric extract, alpha lipoic acid, safflower seed oil extract, coconut oil extract, black pepper extract and a few other undisclosed ingredients listed as naturally sourced energy, and another supplement that reportedly contains Yohimbine. For 4 days prior to presentation the patient complained of pleuritic non-exertional chest pain. The day of her admission, she had similar chest pain while playing competitive soccer, and after arriving at home she went to her room to rest. Shortly thereafter her mother heard her collapse and found her daughter unresponsive, pale, and without a pulse. The mother started chest compressions and summonedemergency medical service, which found the patient in ventricular fibrillation. Epinephrine, amiodarone, and 2 transthoracic electrical shocks restored sinus rhythm. At the outside hospital she was intubated and because of frequent short runs of non-sustained ventricular tachycardia she received another bolus of amiodarone. She was hemodynamically stable and did not require vasopressors. Her white blood cell count was 22140/mm³ (reference 3900 – 12700); D-Dimer level was 12.06 μg/ml (reference 0-499); Troponin I was 6.241 ng/ml (reference 0.00-0.026); brain natriuretic peptide was 121 pg/ ml (reference 0-99); and C-reactive protein was 35.3 mg/L (reference 0.0-8.2). Toxicology and pregnancy screens were negative. Computed tomography of her head showed no acute abnormalities. An electrocardiogram was recorded (Figure 1), and she was transferred to our hospital where she underwent further testing.
ng/ml (reference 0.00-0.026) at the outside facility and continued to trend downward, as did her white blood cell count, during her current hospital stay. Three days following her arrest a repeat echocardiogram showed normal left ventricular systolic function with an EF of > 55%. Her short-term memory rapidly improved. An exercise stress test did not reveal signs of ischemia or elicit any arrhythmia. The patient was fitted with a wearable defibrillator (LifeVest) and discharged home on metoprolol succinate and lisinopril. Two months after the arrest, no arrhythmia has been detected by the wearable defibrillator. Follow-up MRI with gadolinium continues to show late enhancement. In the United States approximately 360,000 cases of out-of-hospital cardiac arrest occur each year,¹ and the incidence of death from sudden cardiac arrest (SCA) in persons less than 35 years of age has been estimated from 1.0 to 6.4 per 100,000 patient years.² Coronary artery disease (CAD) is the most common cause for SCA constituting about 80% cases, followed by non-ischemic cardiomyopathy accounting for another 10% to 15%. The most common cause in patients less than 35 years old, however, is hypertrophic cardiomyopathy. Other causes which are seen predominantly in youngpatients include longQT syndrome, short QT syndrome, channelopathies, and congenital heart disease.³ Previous studies have reported anywhere from 2% to 42% of cases of SCA due to myocarditis.⁴⁵
Signal averaged electrocardiogram was unremarkable. Coronary arteriography was normal. Endomyocardial biopsy revealed normal endocardium with minimal focal myocardial fibrosis and subendocardial thickening. Electron microscopy of the endomyocardial biopsy showed normal myocytes, mitochondria, glycogen, and a normal amount of interstitial tissue without any abnormal fibrillary connective tissue or amyloid deposits. The patient had a left ventricular ejection fraction (EF) of 40% and no structural abnormality on transthoracic echocardiogram. Electrophysiological testing foundnoabnormal atrioventricular connection or inducible arrhythmia. There was delayed enhancement from base to apex in the posterior-inferior wall of the left ventricle on cardiac magnetic resonance imaging (MRI) (Figure 2).
Figure 2. Cardiac MRI with gadolinium showing delayed enhancement of the posterior-inferior wall of the left ventricle. Cardiac MRI can be a crucial tool in the diagnosis of myocarditis. It shows myocardial edema on T2 weighted images, capillary leak on early gadolinium enhancement, and myocardial necrosis or fibrosis by late gadoliniumenhancement.⁸
To read the full article, visit lsms.org.
8 J LA MED SOC | VOL 171 | NO. 1
2019 HOUSE OF DELEGATES
SAVE THE DATE
WHAT?
2020 Annual Meeting of the House of Delegates
POLICY & DECISION-MAKING
WHEN?
January 24-25, 2020
LSMS members representing all areas of the state convened January 25-26, 2019, at L’Auberge Casino Resort in Lake Charles, Louisiana, for the 2019 Annual Meeting of the House of Delegates.
WHERE?
Baton Rouge Marriott 5500 Hilton Ave. Baton Rouge, LA 70808
INAUGURATION
Lee Stevens, MD was inaugurated as the 2019 President of the Louisiana State Medical Society. Dr. Stevens specializes in psychiatry and practices in Shreveport, Louisiana. Dr. Stevens is pictured with Susan Bankston, MD, who served as LSMS President in 2018.
AWARDS LUNCH
Roger Smith, MD, received the Hall of Fame Award at the Awards Lunch on Friday, January 25, 2019. He was among others who received recognition for their dedication to the advancement of the practice of medicine.
GALA
LSMS members and guests danced the night away at the Inauguration Gala honoring the 139th President of the LSMS, Lee Stevens, MD. The gala took place at L’Auberge Casino Resort in Lake Charles, Louisiana, with music provided by Johnny Earthquake and the Moondogs.
9
J LA MED SOC | VOL 171 | NO. 1
LEGISLATIVE SESSION
DUE PROCESS RIGHTS
LEGISLATION BY THE NUMBERS 135 54 BILLS TRACKED BILLS SUPPORTED 11 BILLS OPPOSED THE LSMS IS YOUR LEADING ADVOCATE FOR THE MEDICAL PROFESSION BEFORE THE LOUISIANA LEGISLATURE, STATE AGENCIES, LICENSING BOARDS, AND THE JUDICIAL BRANCH OF GOVERNMENT .
DUE PROCESS RIGHTS GRANTS PHYSICIANS THE RIGHTS OF FULL DISCOVERY INCLUSIVE OF THE RIGHT TO CONFRONT HIS ACCUSER IN RELATION TO INVESTIGATIONS BY THE LOUISIANA STATE BOARD OF MEDICAL EXAMINERS.
(ACT 599)
LSMS MEMBERS SUCCESS!
YOUR VOICE IN HEALTH CARE Solid reputation as a strong, unified voice with members of the legislature
YOU OUR SUPPORTERS Engaged building blocks for physcian-led medicine in Louisiana
WINNING TEAM Making Louisiana a better place to practice medicine
ISSUES MANAGEMENT
50+ LSMS PHYSICIAN MEMBERS SEATED ON OVER 19 STATEWIDE BOARDS & COMMISSIONS
LSMS STAFF REPRESENTATION ON 25 STATEWIDE BOARDS & COMMISSIONS MONITORING AGENCIES THAT ARE MAKING DECISIONS ABOUT HOW YOU ARE PAID AND PATIENT CARE
LAMPAC
2018 WAS THE YEAR OF RECRUITMENT WE DID
WHAT IS A BIG PAC ? A POLITICAL ACTION COMMITTEE PAC WITH OVER 250 MEMBERS WHO CONTRIBUTED OVER $50 TO THE PAC DURING THE PRECEDING CALENDAR YEAR AND HAS BEEN CERTIFIED BY THE ETHICS ADMINISTRATION AS MEETING THAT MEMBERSHIP REQUIREMENT.
IT!
BIG 295 CONTRIBUTORS PAC
HOUSE OF DELEGATES
TOWNHALL MEETINGS
PHYSICIANS LEADERSHIP ACADEMY
1,031 185 10 4 MILES TRAVELED TOTAL ATTENDEES DISTRICTS VISITED CME HOURS THE LSMS HIT THE ROAD TO VISIT EACH DISTRICT .
PARTNEREDWITH LSU E.J. Ourso College of Business Administration to provide physician leaders with necessary skills to be successful in the ever-changing business of medicine.
119 18
TOTAL DELEGATES
TOTAL RESOLUTIONS INCLUDING AMA DIRECTIVES & LSMS POLICY REPRESENTING ALL AREAS OF THE STATE FOR POLICY AND DECISION-MAKING .
9 GRADUATES FROM THE SPRING CLASS OF 2018 TUITION FUNDED FROM THE LSMS AND A GRANT BY THE PHYSICIANS FOUNDATION
RESOURCES
COMMUNICATIONS
JOURNAL OF THE LSMS
CONFERENCES ATTENDED 18
PUBLISHED MANUSCRIPTS 48
AUTHORS PUBLISHED 158
JOURNAL SUBMISSIONS 112
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140
TOTAL MEMBERS 5,588
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2019 100% GROUP MEMBERS
THE WOMAN’S CLINIC OF MONROE
LAKE CHARLES ANESTHESIOLOGY | ACADIANA RENAL PHYSICIANS | LOUISIANA CARDIOLOGY ASSOCIATES | OPELOUSAS OTHOPAEDIC CLINIC | LSU HEALH SCIENCES CENTER - DEPT.OF ORTHOPAEDICS | JEFFERSON RADIOLOGY ASSOCIATES | WEST JEFFERSON EMERGENCY PHYSICIANS INTERESTED IN JOINING THIS LIST AS A 100% GROUP? CONTACT LSMS DIRECTOR OF MEMBER SERVICES AND ADMINISTRATION TERRI WATSON, TERRI@LSMS.ORG OR 225-229-7222.
DUE PROCESS RIGHTS FOR PHYSICIANS W. Scott Keady & Joshua G. McDiarmid Kantrow, Spaht, Weaver & Blitzer (APLC)
New Restrictions and Requirements Relating to Investigations Of Physicians by the Louisiana State Board of Medical Examiners
T he Louisiana Medical Practice Act, La. R.S. §§ 37:1261- 1292 (the “Act”) was enacted with the stated purpose of protecting the public against the unprofessional, improper, unauthorized or unqualified practice of medicine by physicians. In 2015, the Louisiana legislature amended the Act (hereafter, the “2015 Amendments”) to specifically require the Louisiana State Board of Medical Examiners (the “Board”) to “adopt rules . . . to provide for the investigation of complaints against physicians and adjudication of alleged violations by physicians of any provision” of the Act. La. R.S. § 37:1285.2(B). The 2015 Amendments further required the Board to ensure that the rules adopted thereby satisfy the “minimum due process requirements” of the Louisiana and United States Constitutions and specifically address the requisite notice to be provided in connection with such investigations, the time limits for initiating and completing such investigations and scheduling adjudicatory hearings, the procedure for conducting adjudicatory hearings , informal settlements and consent decrees in connection with such investigations or adjudicatory hearings, and how notice of final decisions of the Board shall be provided. Id. As required by the 2015 Amendments, on December 20, 2015, the Board published the final rules for processing and investigating complaints against physicians and initiating and resolving administrative complaints filed by the Board against physicians. See La. Admin. Code 46:XLV Chapters 97 and 99 (collectively , the “2015 Regulations”). On May 31, 2018, the Louisiana legislature further amended certain provisions of the Act, including La. R.S. § 37:1285.2(A) and (D), and also supplemented the Act with the addition of La. R.S. §§ 37:1270(A)(9), and 37:1285.2(E) through (G) (collectively, the “2018 Amendments”). Unfortunately, the 2018 Amendments are somewhat unclear and, at times, inconsistent with the 2015 Regulations. When such inconsistency exists, the 2018 Amendments control. With this tenet in mind, we provide the following summary of those recent changes to the Act that we believe may be of particular interest to Louisiana physicians. However, we strongly encourage physicians and physician practices faced, in the future, with a complaint or investigation governed by the Act to seek advice from their own legal counsel in connection with their specific circumstances.
THE PRELIMINARY REVIEW Prior to enactment of the 2018 Amendments, the Act and the 2015 Regulations provided that the Board “may” conduct a “preliminary review” to determine whether a complaint regarding a physician, whether received by the Board from a third party or initiated by the Board on its own motion, warranted formal investigation. La. Admin. Code 46:XLV § 9709(A). The 2018 Amendments now provide that the Board “shall” initiate a “preliminary review” to determine if cause exists to warrant formal investigation of a physician and only if: (a) a complaint is received from a person other than an employee of the Board; (b) a report is received from a law enforcement agency, federal or state regulatory agency, reporting authority verified by the Board chairman through electronic means or other means, or physician health program or other treatment program that contains information that supports an indication that a possible violation of the Act, or any rule promulgated in connection therewith, may have occurred; or (c) the Board, in executive session, duly adopts a motion by a two-thirds vote of the members of the Board making an affirmative finding that sufficient evidence exists to conclude that a violation of the Act, or any rule promulgated in connection therewith, may have occurred. La. R.S. § 37:1285.2(A)(1). In addition to mandating that the Board first conduct a preliminary review and only in certain circumstances, the 2018 Amendments also reduced the timewithinwhich the Boardmust complete a preliminary review to ninety (90) days, as opposed to the one-hundred eighty (180) days provided by the 2015 Regulations, although the Board is still authorized to extend the time for completion. La. R.S. § 37:1285.2(A)(2). Finally, in connection with a preliminary review, the 2018 Amendments clarify that the Board“may obtain all files and records related to the complaint and to the complainant, and may obtain no more than twenty additional files or records in connection with the review unless the board authorizes review of additional files or records.” La. R.S. § 37:1285.2(A)(3).
THE FORMAL INVESTIGATION
If, as a result of its mandatory preliminary review, the Board determines that cause exists to warrant formal investigation of
J LA MED SOC | VOL 171 | NO. 1 13
the applicable physician, the 2018 Amendments now provide that the Board “shall” appoint a “director of investigations to act as the lead investigator for any complaint regarding a physician” otherwise subject to the Act. La. R.S. §§ 37:1270(A) (9). This director of investigations shall (a) serve at the pleasure of, and be answerable directly to, the Board, (b) not concurrently serve as the Board’s executive director, and (c) be a physician licensed to practice in Louisiana, who has engaged in the active practice of medicine for at least five (5) years. Id. Presumably, this “director of investigations,” who must be a licensed Louisiana physician, replaces the “lead investigator” referenced in the 2015 Amendments, who could be any staff member of the Board, except the Board’s executive director.
CONSENT ORDERS The 2015 Regulations provide that before, during or following an investigation, or after filing an administrative complaint, the Board may dispose of any complaint through informal disposition. See La. Admin. Code 46:XLV § 9713. Informal disposition includes informal settlements and consent orders. The 2018 Amendments now require that prior to offering a consent order to a person licensed by the Board, the Board shall make available to that person all files and records which pertain to the case against him or her—and which are not required by law to remain confidential or are otherwise privileged—except that the Board may object to making particular files and records available – which objection may (or may not) be overruled by the independent counsel. La. R.S. § 37:1285.2(F)(1). SITE VISITS AND MEDICAL RECORDS REQUESTS OUTSIDE OF ACTIVE INVESTIGATIONS The final amendment of note for physicians concerns action that may be taken under circumstances in which physicians are not subject to (or not yet subject to) an active investigation under the Act. Specifically, the 2018 Amendments provide that the Board may only conduct a site visit concerning, or request medical records from, an individual licensed by the Board who is not subject to an active investigation if the executive director of the Board first requests, and ultimately obtains, approval therefor by a duly adopted motion of two-thirds vote of the Board, meeting in executive session. La. R.S. § 37:1285.2(D)(1). The 2018 Amendments further provide that the executive director’s request for such approval must include the basis uponwhich the site visit or records request is warranted, the number of records to be requested, if applicable, the date, time, and anticipated length of the proposed site visit, and the dates of any previous sitevisits. Id. Significantly, the2018Amendments alsomake clear that the Board “shall” be prohibited from disclosing the identity of any individual included in any such request for approval, while clarifying that these provisions are applicable to practice performance reviews of physicians practicing telemedicine.
THE ADMINISTRATIVE COMPLAINT
If, as a result of its formal investigation, the Board determines that there is sufficient information and evidence to indicate that a violation of the law has occurred, an administrative complaint may be filed with the Board against the applicable physician. La. Admin. Code 46:XLV § 9711(G). In connection with such a complaint, the 2018 Amendments now provide additional rights and protections for the applicable physician. Significantly, these rights and protections often require action by the “independent counsel,” which although not defined within the Act, presumably refers to legal counsel that may assist the Board and who otherwise “is independent of complainant counsel” and “has not participated in the investigation or prosecution of the case.” See La. Admin. Code 46:XLV § 9921(D). In any event, the 2018 Amendments now provide that, in connection with the filing of an administrative complaint, (a) the Board “shall” notify the applicable physician that he or she has the right to face any complainant at the administrative hearing unless the independent counsel, after reviewing all evidence related to the complaint submitted by the complainant and physician, rules that the complainant may remain anonymous – which ruling may be overruled by a duly adopted motion of two- thirds vote of the Board, (b) all files of the Board regarding the complaint which are not required by law to remain confidential or which are not otherwise privileged shall be made available to the applicable physician (although it is unclear whether the physician must engage in formal discovery to obtain these files or may simply request such files), (c) any evidence which may potentially exculpate the applicable physician shall be disclosed to the physician whether or not requested and whether or not reduced to recorded or documentary form (emphasis added); and (d) all relevant information, documents, and records gathered in an investigation of the applicable physician shall be noted in the record or file of the case, except that the Board may object to including particular material in the record or file of the case – which objection may (or may not) be overruledby the independent counsel. La. R.S. § 37:1285.2(E) and (F)(2). The 2018 Amendments also provide that the Board “shall” notify the applicable physician (and his or her counsel) if the Board intends to use records from any prior investigation of the physician in a current case, which records shall then be deemed records of the case otherwise subject to certain provisions of the Act (although it is unclear whether or how any conflict with such other provisions will be resolved). La. R.S. § 37:1285.2(F)(3).
Disclaimer: The information provided herein (1) is for general information only; (2) does not create an attorney-client relationship between the author or the author’s firm and the reader; (3) does not constitute the provision of legal advice, tax advice, or professional consulting of any kind; and (4) does not substitute for consultation with professional legal, tax or other competent advisors. Before making any decision or taking any action in connection with the matters discussed herein, you should consult with a professional legal, tax and/or other advisor who should be provided with all pertinent facts relevant to your particular situation. The information provided herein is provided “as is,” with no assurance or guarantee of completeness, accuracy, or timeliness of the information.
J LA MED SOC | VOL 171 | NO. 1 14
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