Patient Privacy and the Use of Social Media in Medical Practices

How Much Can Physicians and Medical Offices Tweet, Post, Like, and Share?

  It’s no secret: marketing, advertising, and patient relations in the digital age require many Texas physicians and medical practices to maintain a social media presence.  However, due to the array of complex patient-confidentiality rules and regulations which govern communication in the medical industry, Texas practitioners must be conscious of the potential risks associated with social media.

Under both Texas and federal privacy laws, physicians and medical practices are required to have policies in place to ensure the integrity and confidentiality of their patients’ protected health information (PHI) and protected patient information (PPI).  Because communications made via social media forums, including Facebook, Twitter, and Instagram, are usually unencrypted, those communications can lead to the unintended disclosure of protected information and the necessity of remedial action, or worse– regulatory or disciplinary reprimand.

The more obvious breaches of confidentiality have not presented too much of a novel concern, as most physicians and office employees are well-aware that the unauthorized posting of “John Doe just got a check-up – flu free and ready for school!” on social media is inappropriate.   However, many of the communications that can land medical practices in trouble are more subtle in nature.   For example, communication between two practice employees or colleagues via private social media messenger could potentially constitute an unsecured disclosure of protected health information, depending upon the content of the conversation, and the involvement of the respective parties in the patient’s care.    Similarly, an employee group photo from an office luncheon, posted on the medical practice social media page seems innocuous, but if that photo includes an inadvertent view of a patient sign-in sheet, or a computer monitor with discernible patient information, a potential breach could ruin the party.

Additionally, insofar as some of the HIPAA reporting, disclosure, and notice requirements are dependent upon the size of the breach at issue, factors such as how many “re-tweets,” “likes,” “posts,” or comments a particular publication received can be crucially important, and easily monitored by critical parties.

Ultimately, then, Texas physicians and medical offices should create, employ, and enforce a specific policy which addresses the permissible scope of social media use, and provides for accountability among both medical and administrative personnel.

Texas Appellate Court Allows Defendants to Prevail in Using Heightened Emergency Care Negligence Standard

The Court of Appeals for the Sixth Appellate District of Texas at Texarkana held in Crocker v. Babcock, et al., that the defendants in a healthcare liability lawsuit were entitled to utilize the willful and wanton negligence standard to determine whether their conduct departed from the accepted standard of care for emergency medical care in a hospital emergency department. The court reached this conclusion because the plaintiff, Tammy Crocker, presented to the medical staff with an emergency condition – a suspected stroke – and the immediate action taken with the purpose of diagnosing and treating this condition amounted to “emergency services.”

Ms. Crocker began experiencing stroke-like symptoms after collapsing on the floor of her home. She was described as alert, but unable to speak, with facial droop and right side weakness. Ms. Crocker was airlifted to Good Shepherd Medical Center in Longview, during which time an in-flight crew member notified either the emergency department charge nurse or another emergency department nurse of an inbound possible stroke patient. Although required by hospital protocol, the emergency department nurse who received the notification did not activate Good Shepherd’s stroke code protocol. Initially, Ms. Crocker was unable to move, speak, or smile, but she improved on the helicopter flight and was able to assist in moving herself onto the hospital gurney upon her arrival to the hospital.

Ms. Crocker’s case was noted as “urgent” upon her arrival to the emergency department. Dr. Babcock, her treating physician, ordered a CT scan without contrast of her brain as well as additional tests including: a comprehensive metabolic panel, a chest x-ray, an ECG, and a complete urinalysis. Dr. Babcock’s differential diagnosis included (1) cardiovascular accident, (2) transient ischemic attack (TIA), (3) dementia, and (4) paralysis. However, Dr. Babcock later changed his diagnosis of Ms. Crocker’s condition to acute, non-hemorrhagic cardiovascular accident.

Ultimately, Ms. Crocker was diagnosed with having suffered an Ischemic stroke. She filed a medical negligence lawsuit alleging damages based on the missed diagnosis and failure to treat her stroke, to which Dr. Babcock and the other defendants claimed they were providing emergency medical care and their conduct should therefore be governed by the heightened negligence standard contained in Section 74.153 of the Texas Civil Practice and Remedies Code. The issue left for the appellate court to resolve was whether Section 74.153 applied to the facts of this case.

Even though the court found that the heightened willful and wanton negligence standard applied to the defendants’ conduct, the court declined to follow the Turner analysis set forth by the Dallas Court of Appeals in Turner v. Franklin. In that case, the Dallas appellate court used various components of statutory language to piece together a comprehensive definition of “emergency medical care.” Essentially, under the Turner analysis, “emergency medical care” was found to be “any actions or efforts undertaken in a good faith effort to diagnose or treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or attempt to effect cures to those conditions,” provided “during the time period and under the circumstances specified in [the statute].” Under Chapter 74, emergency medical care is defined as care provided after the sudden onset of a medical or traumatic condition sufficiently severe to place the patient’s health in serious jeopardy, but specifically excludes care or treatment that “occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency.”

The Texarkana appellate court did not explain why it declined to follow the Turner analysis and instead stated that it would focus its analysis on the context in which the emergency department care was provided to determine whether Ms. Crocker received actual emergency services. The court found that Ms. Crocker presented to the hospital for emergency medical evaluation and treatment following a sudden onset of measurable neurological deficits. The court went on to state that the absence of immediate medical attention for this condition “could reasonably be expected to result in placing the patient’s health in serious jeopardy.” Moreover, the court concluded that Ms. Crocker presented with the type of medical condition that Section 74.153 was designed to address.

The court added that the failure to initiate stroke code protocol did not change the fact that the hospital took immediate action to respond to Ms. Crocker’s condition and that Dr. Babcock also took immediate action intended to diagnose Ms. Crocker’s suspected stroke following the sudden onset of her acute symptoms. In light of the immediate actions taken, the Court concluded that the defendants’ conduct was governed by the heightened willful and wanton negligence standard contained in Section 74.153.

CMS to Begin Covering Preventative CT Scans for Eligible Smokers

On November 10, 2014, The Centers for Medicare & Medicaid Services (CMS) issued a Proposed Decision Memo for Screening for Lung Cancer with Low Dose Computed Tomography (LDCT).[1]  Under the new, proposed framework, Medicare beneficiaries who have a qualifying tobacco history of smoking at least one pack of cigarettes per day for thirty years would be eligible to receive an annual, preventative lung cancer CT screening.  The CT scan would be provided free-of-charge to Medicare beneficiaries between the ages of 55 and 74 who are either current smokers or recent smokers, having met the above qualifying tobacco history within the past fifteen years.  Pursuant to the CMS proposal, all covered scans must be performed at eligible facilities which have participated in past lung cancer screening trials, or in accredited advanced diagnostic imaging centers with training and experience in LDCT lung cancer screening.

While the Affordable Care Act already requires private insurers to cover preventative CT scans for long-term smokers at heightened risk for lung cancer, this CMS proposal would extend that coverage to a heavily-hit, previously-uncovered market: Medicare beneficiaries.   The initial written order for a preventative CT screening must be made during a formalized lung cancer screening, counseling, and shared decision making visit, and must be documented in a form prescribed by CMS.  Subsequent annual screenings can be ordered in writing as part of a qualifying patient’s annual wellness exam, with certain documentation requirements.

This CMS decision, which will likely become effective in February, comes at the behest of industry trends recognizing the importance and feasibility of early lung cancer detection, treatment, and prevention, as well as formal requests from a number of national cancer specialists.

[1] A copy of the CMS Proposal, as well as a detailed criteria for applicability is available at:

Pre-filing of Legislation is Slow—and that is not a complaint

After the first day of pre-filing the pace of legislation filed in both the House and the Senate has slowed.  The first noteworthy health care bill would strike repayment of funds as a defense to criminal Medicaid Fraud.  HB 334 and SB 187 were both filed on November 17th and have identical language creating a new subsection to section 35A.02 of the Penal Code which, if adopted, would apparently prohibit a defendant provider from offering evidence that the government has recouped the alleged overpayments as a defense in a criminal Medicaid Fraud action.  We will keep an eye on these bills.  In what appears to be anti-lawsuit legislation filed to benefit the anti–anti-lawsuit legislation plaintiff’s bar, (yes,  irony is the word you are looking for) there is a bill filed which would prohibit lawsuits against plaintiff attorneys arising out of contingency fee agreements provided such agreements meet certain requirements. (HB 247).  While on the topic of irony, there has been a bill filed to prohibit discrimination against LGBT applicants for health insurance.  Meanwhile, a separate piece of legislation that clearly appears to be an anti-ObamaCare bill, provides that: “Each individual in this state has the right to choose or decline to choose to purchase health care coverage without penalty or sanction or threat of penalty or sanction.” This language, aside from it potential statement about ObamaCare, seems to extend non-discrimation protection to not only LGBT, but to non-citizen “individuals in this state.”  There are a few more proposed bills to wipe out most taxes in the state.  Finally, in legislation clearly intended to protect school children from teachers on the edge (and I am quick to add my firm belief that there is a special place in heaven for teachers) there is a bill that would extend the required duty free lunch break of classroom teachers and librarians from 30 to 45 minutes.   Stay tuned . . .

Off and Running with First Day of Pre-Filed Bills in Austin

We are off and running with the first day of legislative pre-filings down in Austin.  So far health care appears to be under the radar other than a bill to track how long med students doing their residency in Texas stay in the state after they finish.  A few old favorites are back like bills prohibiting texting while driving and doing away with the franchise tax.  There are a few bills to treat vapor cigarettes like the old-fashion light-up kind when it comes to advertising and use in public locations.  Another bill creates immunity for frat boys who themselves haze, but then rat out their brothers to college administration.  Based on the first day filings, it is clearly time for Texans to take matters into our own hands in the nation’s capital.  Specifically, bills were filed to create an offense if Washington tries to move prisoners here from Cuba; encouraging Washington to repeal Dodd-Frank; authorizing the comptroller to withhold moneys the state owes to the federal government until we get back every last cent we have spent to secure the boarder; and requiring all graduates of public school to have a course on the US Constitution.  The largest area of concern for first day legislations was weapons.  To quickly summarize: creating a pre-hunting season tax holiday for guns and hunting supplies similar to back to school tax-free weekend; allowing school board members and principals to carry  guns on campus; removing Bowie knifes from the list of knifes illegal to carry (a quick shout out to Remember the Alamo);  outlawing all federal limitations on what guns we good Texans can own (unrelated and oddly placed, if anyone has a M1 tank they are looking to sell please call me); and perhaps most importantly, a bill that prevents a school district from punishing a “student in kindergarten through grade 5 for brandishing a partially consumed pastry or other food item to simulate a firearm or weapon” (and yes that is a direct quote).  One last note, there is a proposed House Resolution Commemorating Christmas.  I won’t post every day, but I thought the first day deserved some attention.  If you would like follow my updates be sure to follow the Criss & Kraft blog  or my new twitter @jdcriss.

Players in Place for the 84th Texas Legislative Session

Written by: David Criss

It has long been speculated that there is a typo in the Texas Constitution and the forefathers intended for the Texas Legislature to meet for two days every 140 years.  However, as it stands, the Texas Legislature meets for 140 days every two years, barring special sessions.  Thus, the 84th Session will be “gaveled-in” this January and now we know who the players will be.

First, as most of you know, Greg Abbot was elected Governor and Dan Patrick was elected as the new Lieutenant Governor.  While both are experienced in government operations, they are still rookies to these new positions.  Joe Straus, who was elected Speaker of the House in 2009, will be the principal veteran returning to the leadership lineup.

The Texas Senate will have 20 Republicans and 11 Democrats, including 7 freshmen and another rookie to be named later who will fill the seat of current Senator Glenn Hegar who was elected  Comptroller, and thus will be resigning his Senate seat.  The 7 elected new members are:

 SD 2: Bob Hall-R (Canton)

SD 4: Brandon Creighton-R (Conroe)

SD 7: Paul Bettencourt-R (Houston)

SD 8: Van Taylor-R (Plano)

SD 10: Konni Burton-R (Fort Worth)

SD 16: Don Huffines-R (Dallas)

SD 28: Charles Perry-R (Lubbock)

Over in the House, there will be 98 Republicans and 52 Democrats as the Speaker sounds the starting gavel.  Joining the 36 rookies from last biennial, the 83rd session, will be 25 new House members.  That’s right, 61 members with one session or less worth of experience.  The new faces this year are:

HD 1: Gary VanDeaver-R (New Boston)

HD 4: Stuart Spitzer-R (Kaufman)

HD 10: John Wray-R (Waxahachie)

HD 15: Mark Keough-R (Spring)

HD 16: Will Metcalf-R (Conroe)

HD 21: Dade Phelan-R (Port Arthur)

HD 23: Wayne Faircloth-R (Galveston)

HD 50: Celia Israel-D (Austin)

HD 53: Andrew Murr-R (Junction)

HD 55: Molly White-R (Temple)

HD 58: DeWayne Burns-R (Cleburne)

HD 66: Matt Shaheen-R (Plano)

HD 76: Cesar Blanco-D (El Paso)

HD 81: Brooks Landgraf-R (Odessa)

HD 83: Dustin Burrows-R (Lubbock)

HD 90: Ramon Romero-D (Fort Worth)

HD 94: Tony Tinderholt-R (Arlington)

HD 102: Linda Koop-R (Dallas)

HD 105: Rodney Anderson-R (Grand Prairie)

HD 108: Morgan Meyer-R (Dallas)

HD 115: Matt Rinaldi-R (Irving)

HD 117: Rick Galindo-R (San Antonio)

HD 129: Dennis Paul-R (Houston)

HD 132: Mike Schofield-R (Katy)

HD 144: Gilbert Pena-R (Pasadena)

In a Senate with a rookie quarterback as Lieutenant Governor and 8 of 31 (slightly over 25%) players being new to this game and a House team of limited experience in most positions, we could see some interesting early headlines.  It also creates a challenge for those participating in this year’s Texas Monthly Best and Worst Legislatures fantasy draft.  I will be following the play-by-play on my new twitter @jdcriss as legislation is pre-filed and later as the session gets underway. For more information on the legislation you can also refer to the Criss & Kraft blog.  Although my primary focus will be health care legislation, having spent a few sessions close to the action, I can’t resist mixing in a few other highlights, as well as, the occasional best and worst plays.

Physician-Owned Ambulatory Surgery Centers Likely Face Heightened Scrutiny After Multi-Million Dollar Qui Tam Settlement

In recent years, it has become increasingly popular for physicians to obtain investment and ownership interests in ambulatory surgery centers (ASC’s).  The business motivations behind physician involvement in ASC’s are clear: those facilities are often very profitable and physician-investors have a fair amount of industry knowledge to support informed investment decisions.  A recent lawsuit in Tennessee, however, could call into question the appropriateness of some ASC investments.

Under the False Claims Act, a private citizen can bring a “qui tam” lawsuit on behalf of the U.S. government against a violator of the Act and receive a portion of any settlements or judgments against the violator.  When a citizen brings a qui tam action, they are referred to as a “relator,” and the United States government has the ability to intervene in the suit against the violator, or simply allow the relator to proceed against the violator and collect the balance of any judgment or settlement, less the relator’s share.

In September, Meridian Surgical Partners, a Tennessee-based operator of ambulatory surgery centers, agreed to pay $3.3 million to settle a qui tam lawsuit brought by a former manager of one of Meridian’s ASC facilities, the Treasure Coast Center (TCC). The former TCC manager, Mr. Thomas Simmons, alleged in his lawsuit that Meridian had engaged in a kick-back scheme by paying investor physicians inflated returns based upon their respective referral volumes, and by rewarding high-referral physicians with minority ownership interests in the ASC at reduced costs.   In support of his allegations, Mr. Simmons alleged that Meridian’s initial purchase of the ASC was based upon a valuation of the facility’s earnings, rather than assets, and was therefore above market value, which in turn led to excessive distributions and benefit to the investor-physicians.

Though the government ultimately declined to intervene in the Meridian case, and though Meridian maintains that the allegations in Mr. Simmons’ lawsuit were baseless, the $3.3 million settlement has caused many people to take a second look at the compensation and investment-distribution structures of physician-owned ambulatory surgery centers.  It is important, then, for physicians and facility-owners alike to take extensive efforts to analyze and verify the formalized valuation methodology for pricing ASC acquisition and physician investment, typically through the use of an independent, third-party valuation.  Not only will appropriate valuation ensure that an ASC investment is sound, it can also help to protect the facility and physician-investors from the risk of government action and qui tam litigation.



Not surprisingly, health care liability claims can be notoriously complex.  While these claims may take several months or years to fully resolve, as a defendant, many of your initial actions in a malpractice lawsuit can significantly impact the progression of the case.  The following post outlines the first few basic phases of a health care liability claim to assist you in avoiding pitfalls before you consult an attorney or notify your insurance company.

Notice of Claim

Before a patient ever files a health care liability claim, the patient should provide written notice to each physician or health care provider (including hospitals and other institutions) that will be a defendant in the suit at least sixty days prior to filing.[1]  In addition to other technical requirements, an authorization permitting the retrieval of the patient’s medical records must accompany the notice.[2]

While there is no explicit penalty for failure to provide notice, the rules afford plaintiffs who do comply with the notice requirement an additional seventy-five days to the statute of limitations.  Conversely, if the plaintiff fails to provide notice, they are not entitled to the seventy-five day extension.

At that point, many insurance policies require you to notify your insurer as soon as reasonably possible after you become aware of a claim covered by your particular policy.  The sixty day “waiting period” between receiving notice of a claim and the filing of a lawsuit is generally utilized by you and your insurer to assess and investigate the patient’s claim.

Original Petition – Filing and Service

Assuming the patient provides notice, upon the expiration of the sixty days, a patient (now a “plaintiff”) may then file their lawsuit.  This is done by submitting a petition to the correct court and serving you with a copy of that petition, along with a citation (collectively referred to as “process”), which indicates when your answer is due.  There are several ways to serve a petition,[3] but the plaintiff will typically employ the use of a process server to deliver the petition to you in person.  The purpose of the petition is to supply the defendants with fair and adequate notice of the underlying claims, allowing the defendants to establish a defense.  To that end, there are several requirements for what a petition must contain.  The evaluation of whether a petition is sufficient and complies with Texas law is best left to your attorney.

Occasionally, a plaintiff can make critical mistakes when serving a petition.  Therefore, it is advisable to retain the original envelope containing the petition, and make a note of where, when, and how you received it.

This is another event which you should report to your insurer, if applicable, as quickly as possible.  Notification is made even more critical in light of the fact that many plaintiffs fail to provide the pre-suit notice to defendants.  Depending upon the terms of your policy, your insurer may retain counsel to defend you in the lawsuit.  Virtually all insurance policies place the burden upon you, as the insured, to notify your insurance company about a lawsuit.  Once you receive service of process, you or your insurer will have a limited time in which to find an attorney to file an answer on your behalf.

Responding to the Petition

As noted above, the citation will tell you when you must file your answer with the court and serve a copy of it to the plaintiff.  This deadline is set forth in the Texas Rules of Civil Procedure as follows: “by 10:00 a.m. on the Monday next following the expiration of twenty days after the date of service.”[4]

By filing an answer, you are making an appearance before the court, confirming receipt of the lawsuit, and setting forth your response to the plaintiff’s claims.  In Texas, the Rules of Civil Procedure permit you to file a general denial (i.e. a broad denial to all of the plaintiff’s claims); however, there are certain defenses that must be specifically included in your answer in order to raise them later.  An answer should also include a jury demand, in the event you wish a jury to hear the case.

If you fail to file an answer before the deadline, the plaintiff can ask the court to render a default judgment in the plaintiff’s favor.  While you can generally request that the court vacate or set aside the default judgment by filing a motion showing you had an appropriate excuse, this step is easily avoided by timely filing an answer.

Expert Report

Within 120 days after you file your answer, a plaintiff must serve you with one or more expert reports explaining in detail how you were negligent and how your alleged negligence caused the plaintiff’s damages.[5]  The plaintiff is also required to include the expert’s curriculum vitae with his/her report.[6]  There are several other requirements pertaining to the contents of the expert report and the qualifications of the expert, which are beyond the scope of this particular post.  In general, be aware that a plaintiff must serve each defendant with these reports within the statutorily mandated deadline.  Failure to do so compels the court to dismiss the case.


In sum, being aware of the aforementioned steps can help you understand the basic process of how a lawsuit begins and how to avoid legal issues in the early stages of defending yourself against a healthcare liability claim.

[1] Tex. Civ. Prac. & Rem. Code § 74.051(a) (2013).

[2] Id.; see also § 74.052

[3] Tex. R. Civ. P. 21a.

[4] Tex. R. Civ. P. 99(c).

[5] Tex. Civ. Prac. & Rem. Code § 74.351(a).

[6] Id.

Business Associates and Subcontractors Now Subject to New HIPAA Regulations

In January of 2013, the United States Department of Health and Human Services (HHS) released a set of “omnibus regulations” under the Health Insurance Portability and Accountability Act (HIPAA), which amended the requirements for compliant business associate agreements and implemented various provisions of the Health Information Technology for Economic and Clinical Health Act (HITECH), as it pertains to the electronic communication of protected health information (PHI).[1] The initial publication of the omnibus regulations went into effect in September of 2013, and provided a one-year grandfathering period for then-compliant entities.  Accordingly, as of September 22, 2014, the new omnibus requirements for business associates and subcontractors are in full force.  Among the numerous new and amended provisions of the omnibus regulations, two areas are most-prominently highlighted: the addition of subcontractors (non-employed delegates of services) to the HIPAA framework, and the expansion of regulations pertaining to electronic-PHI.

Under the new framework, HIPAA-compliant business associate agreements must be in place not only between covered entities and their business associates, but also between covered entities and their subcontractors, and between business associates and their subcontractors.  There is not currently an independent requirement that covered entities enter into business associate agreements with their business associates’ subcontractors.  The expansion of HIPAA business associate requirements to include subcontractors is accompanied by numerous HHS warnings that subcontractor breaches of HIPAA provisions are attributable to covered entities, even if only indirectly associated with the covered entity by way of a business associate.

In addition to the establishment of business associate agreements among subcontractors, the new omnibus regulations also require HIPAA-compliant agreements to include sufficient, specific protocols with respect to the creation, transmission, and maintenance of electronic PHI, as well as a framework for effective and immediate reporting of suspected HIPAA breaches by covered entities, business associates, and subcontractors, irrespective of whether electronic PHI is a routine part of each entity’s involvement or tasks.


Department of Health and Human Services Issues Special Fraud Alert toward Physician-Laboratory Relationships

Recently, the U.S. Department of Health and Human Services, Office of the Inspector General (OIG), issued a Special Fraud Alert[1] pertaining to potential improper relationships between laboratories, and referring physicians and physician group practices.   This Alert was a follow-up publication to a number of advisory opinions issued over the past decade, emphasizing the impropriety of providing referring physicians with above-fair-market compensation for the referral of laboratory services.  Specifically, and among other trepidations, the OIG has expressed concern that physicians and physician groups are receiving prohibited “kick-backs,” in the form of inflated compensation from laboratories for physician and physician groups’ services in collecting, packaging, storing, and processing the specimens which are eventually forwarded to the paying laboratory for evaluation.

According to the OIG’s publication, some of these “blood-specimen collection, processing, and packaging arrangements” are being inappropriately compensated at an above fair-market value, on a volume-dependent basis, and on an inappropriate per-specimen or per-action basis.  Additionally, the OIG notes that the fees and remuneration paid for some of these services are being paid to physicians and groups, even when a third-party phlebotomist was the party who actually obtained, processed, and transported the specimen at issue.  These arrangements, according to the OIG, are a clear violation of the Anti-Kickback statutes, and are ripe grounds for disciplinary action against both physicians, and laboratories.

In lieu of the foregoing arrangements, the OIG directs physicians and physician groups to the Medicare Claims Processing Manual[2] for guidance regarding the appropriate parameters for physician billing, and notes that only one collection fee, per patient encounter, regardless of the number of specimens collected or the effort put into processing and maintaining those specimens, is proper and compensable under the Medicare guidelines.   Consequently, when billing and receiving payment from laboratories for the collection, maintenance, packaging, and distribution of patient specimens, physicians and physician groups should take extra care to ensure that such payments are fair-market value and appropriate.

[1] A copy of this publication is available at: oratory_Payments_06252014.pdf

[2] A copy of this publication, and the associated fee schedules, are available at: