Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Liability for Long Term Care and Health Care Providers

Volume 16, Issue 7                   ADVERTISEMENT                                July 2015

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In This Issue
Negligent Hiring
What Do You Do When the State Board of Medical Examiners Decides to Pay a Visit To You?
David Barmak, Esq.
Gerald V. Burke, M.D., Esq. 
Jo Ann Halberstadter, Esq.
Jo Ann Halberstadter, Esq.

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Negligent Hiring

By: Jo Ann Halberstadter, Esq. 

Healthcare providers, as employers, are subject to direct liability for the negligent hiring, retention, or supervision of their employees when third parties are injured by the tortious acts of unfit or incompetent employees. In order to succeed during a lawsuit, the injured party must show that the employer knew or in the exercise of ordinary care should have known that its employee's conduct would subject third parties to an unreasonable risk of harm.


When a patient has been injured as a result of the negligent or intentional conduct of a certified nursing assistant or nurse (collectively "caregiver"), one possible ground for a lawsuit against the healthcare provider is the provider's negligence in hiring or retaining an incompetent caregiver. Such a claim is based upon the independent negligence of the provider itself. In other words, the claim is that the provider was administratively negligent in hiring an incompetent caregiver.


There are a number of types of incompetence which may be alleged in these types of lawsuits. If physical or sexual abuse is involved, the provider may be liable if it knew or should have known of the caregiver's tendency or history toward such conduct. Injuries to patients may also result from the failure of an incompetent caregiver to provide proper instruction or from lack of proper and adequate supervision. A caregiver and consequently a provider may be determined to have been unfit where the caregiver was unable to properly maintain control of a patient's behavior which leads to the patient's injury. If, however, there is no evidence that the caregiver was incompetent or where there is no connection between the alleged incompetence and the injury to the patient then there should be no liability to the provider. Providers owe a duty of care to their patients; however, providers are not insurers of their patients' safety and are not obligated to provide patients with constant and complete supervision.


In order to ensure there are no skeletons in the closet (abuse, theft, etc.) healthcare providers must screen applicants through exclusion and criminal background checks as required by state and federal law. A jury will be unforgiving if a criminal background check for a few dollars could've prevented an ultimate injury to the patient. The other critical factor is that if an applicant is hired and deemed at any time to be incompetent, it is crucial that the provider terminate that incompetent employee's employment immediately after remedial efforts prove unsuccessful. To continue to employ an incompetent caregiver after all reasonable efforts to rehabilitate have failed will be viewed by a jury as unconscionable and result in liability for the provider. On the other hand providers must exercise caution because they may be incurring legal liability if the pre-employment investigations utilized discriminate, fail to protect third parties from liability or invade privacy interests.


If you have any questions regarding this article, please contact        Jo Ann Halberstadter, Esq. at or call (609)-454-5351.


What Do You Do When the State Board of Medical Examiners Decides to Pay a Visit To You?
By: Gerald V. Burke, M.D., Esq. 


An unannounced visit by the State Board of Medical Examiners is something that you only want to hear about happening to someone else, not have the opportunity to personally experience yourself.  Unfortunately, since there are so many issues that can lead to a State Board inquiry or investigation, most physicians, at some time during their careers, will have this experience.  Also, this experience is not unique to physicians.  Any other licensed healthcare professional can come under the scrutiny of their licensing board at any time during their professional careers.


This contact from your State Board may be as benign as asking you to review a medical chart and render an opinion on the appropriateness of care or professional conduct of the practitioner in question to having an investigative team, armed with a search warrant, raid your office or home and carry out your computers, charts, and other records, effectively shutting your practice down.  Understanding this process before it occurs may help to dramatically change your outcome.


The State Board of Medical Examiners (Board) is a division of the New Jersey Office of Consumer Affairs and is under the investigative and prosecutorial office of the Attorney General of the State of New Jersey.  It is charged with the protection of the citizens of New Jersey and, by viewing it's activity from this perspective, it helps one to understand the logic behind its actions.  The Board may receive a complaint from almost anyone, a patient, a current office or former office staff member, an administrator, or even a medical colleague.   The Board is obligated to follow-up on every complaint it receives. 


Follow-up on a complaint by the Board can range from a letter of inquiry, requesting further information on an issue, to an unannounced visit to your office or facility from a team of Board investigators equipped with a search warrant who will search and could seize computers, records, etc.  Any contact with the Board must  be taken seriously and given your utmost attention.  To ignore an inquiry letter from the Board could result in a significant escalation of the investigation.  Your license is at stake.


Issues addressed by the Board are broad ranging. They may be simple, such as a patient contending that the care rendered is beneath the accepted standard of care, that there were overcharges for the medical services provided or that your office does not meet appropriate standards of cleanliness.  They can also be extremely serious, such as having inappropriate contact with a patient or practicing medicine without a license.  Currently, the Board is closely scrutinizing the narcotic prescribing habits of physicians, largely secondary to the high number of heroin addicts who were started down this course with the over prescribing of narcotics by well-intentioned physicians.  There are many physicians whom the Board has determined prescribed, tracked or followed up on narcotics indiscriminately and improperly.   Board decisions have resulted in the suspension or revocation of licenses as well as the assessment of significant fines.


If your initial contact with a  Board is a letter of inquiry, read it carefully and be sure you understand everything.  If you are not clear as to what it is  asking, you may want to involve the services of an experienced healthcare attorney at this point.  In either case, give the Board what  it requests, and only what they request, in a timely fashion.  Do not let the letter get misplaced in a pile of mail.  A failure to respond to an initial inquiry will definitely trigger a response from the Board.  Remember, the Board has all the power and, if it senses that a practitioner is being uncooperative,  it will use its power.  It is also at this point that you should probably put a healthcare attorney, experienced in these matters  on notice.  An attorney's insight and understanding can be invaluable in helping you to respond most appropriately and diffuse the situation as quickly as possible.


This initial inquiry letter from the Board and your response can result in the Board sending you a letter stating that they are satisfied with your response and are dismissing the complaint.  Alternately, if your initial response does not satisfy their concerns,  it will either request further information or schedule  an in-person hearing before either a subcommittee of the Board or the full Board itself.  If your matter reaches this stage of investigation, YOU NEED A HEALTHCARE ATTORNEY.  It is at this time that you have been put on notice that you are in jeopardy of serious consequences.  Even if you are sure that you have done nothing wrong, you need an attorney.  Do not wander into the legal morass of a  Board investigation alone.  The results can be disastrous.


If your first contact with the  Board of Medical Examiners is an investigator appearing at your office with a subpoena to serve,  accept the subpoena.  This means that a complaint has been filed with the Board and that the process of an investigation has already begun.  The subpoena, explains what information it wants from you and the time frame in which you are to supply it.  DON'T DISREGARD A SUBPOENA!  This is a legal document and is more authoritative than a letter of inquiry. 


However, if an investigator comes to your door unannounced, you do not have to let him come in.  He will probably ask if he can come in and walk through or tour your office, but do not let him beyond your lobby until you talk to your attorney.  If you don't have an attorney on speed dial, stall him by  saying that you have to speak to your attorney, and then find one.  Make sure that your office staff knows this as well in the event that  an investigator should arrive unannounced when you are not there.  Once you or your staff permits him to come in past the waiting room ("asked in"), anything  he finds is fair game and in-play for the investigation, even if it is not related to the original complaint being investigated.   You also do not have to talk to  him at that time.   Anything you say could be admissible in a Board hearing or court of law and could be used against you.  So always deny  access to your office and your staff and don't answer any questions without first contacting your attorney.    


If an investigator appears at your office with a search warrant, then the  Board  has a major concern of severe improprieties. You cannot deny  access to whatever is specified in the search warrant.  Call your attorney immediately and say nothing.  Even if you are completely blameless of any impropriety, you are not going to be able to convince the investigator of your innocence at that time.  Nothing that you say at that time is going to help you, but it may severely harm you.  Remember, while the primary charge of any Board investigation is the protection of the public, criminal prosecution may follow if the findings of a Board investigation suggest that there is illegal activity involved, the Board can easily turn the investigation and, if indicated, criminal prosecution, over to the Attorney General's office.


Clearly, enlisting the services of a healthcare attorney early in any inquiry by a Board of Medical Examiners will help to minimize your staff and your anxiety, control the proceedings and increase your chance of achieving an optimal outcome. 

If you have questions regarding this article, please contact Gerald V. Burke, MD.,Esq. at or by telephone at (609) 454-5351.



Barmak and Associates, LLC      


Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to healthcare organizations.


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This newsletter has been prepared by Barmak and Associates, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.


For more information, please contact:

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