Public Health Law Map - Beta 5 - Medical and Public Health Law Site

participate in a teaching program depends on the circumstances of the physician’s
practice and the laws in that jurisdiction. A private practicing physician who
chooses to act as a preceptor has the right to turn away patients who object to this,
if the proper steps are taken to provide the patient with alternative care. Otherwise
this might constitute abandonment. If the patient is entitled to care from the
physician because of contractual arrangements, such as an HMO or because of
emergency care laws, the physician does not have the right to force the patient to
accept care from a student.
e) Fraud
It is Medicare/Medicaid fraud if the patient is billed for the student’s or resident’s
services. Medical schools have paid substantial fines for billing Medicare for
resident and student care, and the physicians who signed as providing the care
could have been criminally prosecuted. All patients should be made aware of the
status of all the people involved in their care and the identity of their attending
physician. Federal programs and most state and private third-party payers will not
pay for any service performed by a student or a physician in a training program.
Payment can be expected if a student or resident performs the activity under the
direct supervision of a licensed physician. If a medical student dictates a history
and physical on a patient who is being admitted to the hospital and the attending
physician cosigns this dictation and adds his or her own notes after doing a history
and physical, the physician may bill for the service. A physician who cosigns the
dictation without doing the work is not entitled to payment for a service he or she
did not perform. The physician also may violate the terms of his or her hospital
privileges or the laws on delegation of medical authority. Physicians must
understand that every claim that is submitted to Medicare or Medicaid with their
names on it implies that the physician personally ensures that every aspect of the
bill and the care rendered is proper.
G. Medical Director’s Liability
Physicians who also serve as medical directors in MCOs face special legal problems.
Under ERISA, a medical director is a statutory fiduciary of the health plan because the
ERISA defines a fiduciary as anyone who can allocate the plan’s assets. Under state
law, a medical director also has common law fiduciary responsibilities if the medical
director makes decisions about the care of individual patients. This happens whenever
the medical director looks at a patient’s records or talks to a treating physician or an
NPP about the patient and then makes any decision about that patient’s care, including
the decision that the care is fine and no changes need to be made.
1. Dual Capacity Doctrine
What may happen in MCOs is a variant on the dual capacity doctrine. The dual
capacity doctrine evolved as an aspect of workers’ compensation law. A worker who
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