Category Archives: News & Resources

Florida Legislature Considers Bill To Require All Non-Provider Owned Practices To Become Licensed.

Under the Florida Health Care Clinic Act, most health care clinics not owned by a licensed physician or practitioner must apply for a license with the Agency For Health Care Administration (AHCA). The licensing process can be quite onerous and requires background checks of owners and certain employees, financial requirements, and inspections. Because the law was a result of investigations into personal injury clinics, a quirk in the language of the law made it possible for health care clinics that
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URGENT SCAM ALERT – Phony DEA Agent Contact to Doctors

To our physician clients and friends: We want to let you know about a phony DEA agent scam that was attempted on one of our physician clients the other day.  Our client texted one of our partners, advising that he was on the phone with a person who represented herself as a DEA agent, who was calling to inform the physician that his license was going to be immediately suspended and he was going to be arrested.  We were able
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Just because someone is A Manager does not mean they do not need to be paid Overtime under the FLSA

On February 28, 2019, a jury verdict of 2.9 million dollars was entered against Stake ‘N Shake, for not paying overtime to their managers. That amount is likely to be doubled by the Court within the two months, or so, because under the FLSA the amount the jury awards is often doubled as a legally mandated penalty against the employer. The issue is that the employees suing Stake ‘N Shake were managers, and they were still entitled to overtime. In
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Broward County attending physician held liable for $2,422,500.00 despite carrying malpractice insurance.

Another recent wrongful death lawsuit against an insured attending physician in Broward county demonstrates just how important personal counsel can be when the damages of a case threaten to exceed the limits of a physician’s malpractice insurance policy. In 2014, an attending physician, Dr. A.M., was sued for medical malpractice and the wrongful death of his hospital patient.  A family medicine doctor, neurologist and cardiologist were also named as defendants.  The case concerned a patient who presented with symptoms of
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Palm Beach Doctor held liable for $668,000 plus attorney’s fees, despite carrying malpractice insurance

Contrary to popular belief, medical malpractice insurance does not insulate a physician against personal financial exposure. In fact, most doctors in Florida only carry $250,000 in coverage when the malpractice verdicts commonly exceed $1,000,000.  You can do the math yourself.  Personal counsel can assist a physician by providing legal advice to best protect a physician against personal exposure when the damages of a case threaten to exceed the limits of the malpractice insurance policy. A recent wrongful death lawsuit against
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Workers with Varying Hourly Rates Have Variable Overtime Rates an Employer Must Pay Or Risk Getting Sued Under the Fair Labor Standards Act (FLSA)

Overtime seems like an easy concept; the employee is entitled to 150% of their regular hourly pay for every hour of overtime they work. However, under the Fair Labor Standards Act (FLSA) there are special rules for employees who make different rates throughout the course of the week, and when those different jobs count as independent employment, versus when the work at both jobs must be counted towards the employee’s forty hours per-week. A typical situation where this arises is
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Immigration and Customs Enforcement (ICE) Arrests Are Up Over 700% in 2018, If You Employed Illegal Workers You Need a Good Federal Employment Attorney on Call Now More than Ever

Hiring illegal immigrants exposes your business to serious liability issues that could end in Federal Charges, but at a minimum result in hefty fines and a shutdown of your business for a period. ICE has had a record year with more than 6,848 investigations in 2018, compared to 1,691 investigations in 2017, this is an over 400% increase. ICE plans, on increasing the number of investigations in 2019. In 2017 1,360 companies were audited for I-9 compliance, compared to 5,981
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YOU CANNOT AGREE WITH YOUR EMPLOYEES THAT YOU DO NOT HAVE TO PAY THEM OVERTIME, EVEN IF THE AGREEMENT YOU MAKE PAYS THEM MORE

The right to overtime under the Fair Labor Standards Act (FLSA) cannot be given up in an employment contract, or agreed between the employer and employee not to apply. In hundreds of FLSA cases I have been involved in, one of the most common things employers are sued for is coming up with ways to pay their employees more, but that do not pay them overtime at one-and-one half times their regular hourly rate. Often times these employers tell me
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The Importance of Timely Retaining Personal Counsel

Doctor, when is the best time to treat an infection?  As soon as possible, right?  Timely care usually means that the least amount of harm has occurred, options are available, and a better prognosis.  If significant time passes before an infection is treated, sometimes it’s “better late than never,” but sometimes it’s “too little too late.”   The same is true for retaining personal counsel. Personal counsel is most effective if utilized as soon as possible. If significant time passes
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Personal Counsel protects doctors not insurance companies. Every doctor being sued for medical malpractice should have a personal counsel

When a doctor with malpractice insurance gets sued, the first thing he or she should do is forward the lawsuit to their carrier. The first thing a carrier will do is determine if it owes coverage to the doctor.   Sometimes the insurance company determines the claim is not covered by the policy.  Sometimes the insurance company will cover the claim but reserve their right to withdraw from defending the doctor. In either event, personal counsel can advocate for the doctor’s
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YOU CANNOT AGREE WITH YOUR EMPLOYEES THAT YOU DO NOT HAVE TO PAY THEM OVERTIME, EVEN IF THE AGREEMENT YOU MAKE PAYS THEM MORE

The right to overtime under the Fair Labor Standards Act (FLSA) cannot be given up in an employment contract, or agreed between the employer and employee not to apply. In hundreds of FLSA cases I have been involved in, one of the most common things employers are sued for is coming up with ways to pay their employees more, but that do not pay them overtime at one-and-one half times their regular hourly rate. Often times these employers tell me
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THE SECRET TO APPEARING PRO HAC VICE IN THE SOUTHERN DISTRICT OF FLORIDA

The Southern District of Florida is, arguably, the best place in the country to litigate Federal Claims. However, attorneys appearing pro hac vice often underestimate the importance of the choice of local counsel they associate. Worse, many attorneys appearing pro hac vice in the Southern District of Florida rely on the reputation of a firm, or its size, in determining who to associate as local counsel, neither of these factors are relevant, the attorney, not the firm, is the important
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GAINING THE ADVANTAGE HANDLING FRIVOLOUS LAWSUITS

The cost of doing business successfully today, is that lawsuits are bound to happen, and many of them will be frivolous lawsuits. Routinely frivolous lawsuits are pursued by attorneys who know that even a frivolous lawsuit can be successful against companies who know it is cheaper to pay a settlement than spend years paying attorneys to wind through state court systems. There is a way to fight back, using a trick that puts frivolous lawsuit filers into waters they do
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A WRITTEN AMERICANS WITH DISABILITIES ACT (ADA) POLICY IS ESSENTIAL TO PROTECT YOUR BUSINESS AGAINST LAWSUITS

The word disability has a very broad meaning under the ADA, and conditions you would not think are disabilities can lead to costly lawsuits if an employer does not have a policy to properly handle ADA Accommodation requests by employees. Believe it or not, an appellate court has held an employer liable for not allowing an employee with a sleep disorder to show up to work late every day. However, not all accommodations are required. The most important thing for
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GAINING THE ADVANTAGE HADLING FRIVOLOUS LAWSUITS

The cost of doing business successfully today, is that lawsuits are bound to happen, and many of them will be frivolous lawsuits. Routinely frivolous lawsuits are pursued by attorneys who know that even a frivolous lawsuit can be successful against companies who know it is cheaper to pay a settlement than spend years paying attorneys to wind through state court systems. There is a way to fight back, using a trick that puts frivolous lawsuit filers into waters they do
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A WRITTEN AMERICANS WITH DISABILITIES ACT (ADA) POLICY IS ESSENTIAL TO PROTECT YOUR BUSINESS AGAINST LAWSUITS

The word disability has a very broad meaning under the ADA, and conditions you would not think are disabilities can lead to costly lawsuits if an employer does not have a policy to properly handle ADA Accommodation requests by employees. Believe it or not, an appellate court has held an employer liable for not allowing an employee with a sleep disorder to show up to work late every day. However, not all accommodations are required. The most important thing for
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Strict Time Keeping Rules Are the Only Way to Protect Against Fair Labor Standards Act (FLSA) Lawsuits

  Often times employers have time records that show they paid an employee correctly, however, even with those records many employers lose Fair Labor Standards Act (FLSA) lawsuits. This is because while these businesses have a time clock, and pay their employees based on the hours that the time clock produces, they fail to have policies that eliminate the possibility of employees alleging that they worked off of the clock. Implementing proper procedures as to when your employee's clock in
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A Well Drafted Employee Arbitration Agreement Is Essential to Avoiding Costly Lawsuits

FLSA Lawsuits can cost employers significant amounts of money, both in defense costs and paying claims, however, there is a way to avoid these costly lawsuits. A well drafted arbitration agreement that covers actions brought under the Fair Labor Standards Act (FLSA), and other state/federal laws, is essential to avoiding several kinds of lawsuits. An arbitration agreement is an agreement that your employees sign which obligates them to bring their issues to an arbitrator you select, rather than to court.
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Title VII Requires Employers to Accommodate Employees’ Religious Beliefs, Some But Not All of the Time

Title VII prevents an employer from discriminating on the basis of religion against employees, and applicants for employment. In order not to discriminate an employer must be willing to offer religious accommodations in some, but not all cases. A religious accommodation is an exception to a rule, procedure, job requirement, or standard, because an employee’s, or applicant’s, religious beliefs are violated by one of these workplace requirements. An example of a workplace accommodation is allowing a Muslim woman to wear
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There are Complex Rules as to How to Pay Nannies and Housekeepers

Your nanny or housekeeper may feel like family but housekeepers and nannies the families that serve all the time, and these lawsuits can get far more expensive than other lawsuits brought by employees because of the number of hours involved. There are very specific rules as to how nannies and housekeepers are paid, and often they sue when their employers part ways with them, even after ten years, or more, in the home. Defending against lawsuits brought under the Fair
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Accommodating an Employee is Not Always Required Under the ADA and Other Federal Regulations

On Tuesday a Federal Court in New Jersey ruled that the Port Authority would not be subject to a lawsuit for discrimination based on their failure to accommodate a Jewish employee’s request not to work on the Sabbath and Jewish Holidays. This does not mean that employers are free to ignore an employee who asks for accommodations. Religious accommodations have different requirements based on what type of employer you are. Private employers face cases based on an employee’s religion infrequently
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An Illegal Immigrant Can Sue Their Employer in Federal Court

One of the most common misconceptions that employers have is that illegal immigrants cannot sue their employers. Illegal immigrants can sue their employers in Federal Court for the non-payment of minimum wage, and overtime, pay under the Fair Labor Standards Act (FLSA). Under the FLSA it does not matter whether someone is in the country illegally, nor will they be deported for filing a lawsuit. There are places in the country where an illegal immigrant cannot bring a Federal Lawsuit,
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Under Federal Labor Law Very Few Employees are Independent Contractors

The law does not give the option to employers to pay their employees as independent contractors by paying them via 1099 rather than W-2. For purposes of Federal Labor Laws, and the Fair Labor Standards Act (FLSA), an independent contractor is a person who is not economically dependent on any one employer as a primary source of income. When you hire someone to paint your house you are hiring them as an independent contractor, but when you own a business
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What does “And those Similarly Situated” mean next to the Plaintiff’s Name in a Fair Labor Standards Act Lawsuit

Next to the Plaintiff’s name in a Fair Labor Standards Act (FLSA) lawsuit there are often a variation of the words “and all those similarly situated” or “and those similarly situated.” Variations on “and those similarly situated” are very dangerous words if you are a business owner. The words can turn a lawsuit brought against an employer by one employee, into a lawsuit brought against an employer by several past and present employees, who the Court forces the employer to
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A Surge in Lawsuits by Tipped Employees

Large restaurant chains have paid millions of dollars in settlement money for improper tip pooling arrangements. There are trends in lawsuits under the Fair Labor Standards Act (FLSA). Recently, suits by tipped employees suing their employers has become popular. Restaurants and bars of all sizes, across the country, are being sued by tipped employees who claim that they were tipped improperly. This is because there are a set of complex regulations as to how tipped employees are paid, and how
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Just Because an Employee is Salaried Does Not Mean an Employer Does Not Have to Pay Overtime

One of the most common mistakes that employers make is believing that because they pay employees a salary, the employers do not need to pay the employees overtime. There are employees who receive a salary, and do not need to be paid overtime because they are exempt from the law’s requirement to pay overtime. However, the duties that an employee performs, their training, and their position, determine whether they are exempt from the Fair Labor Standards Act’s (“FLSA”) overtime requirements,
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A Game Changers for Employers sued by Employees By: Joshua H. Sheskin, Esq.

For employees, whose employers classify them as exempt from overtime requirements, it just became harder to sue their employers. If an employee is exempt, an employer does not need to pay them overtime. Common exempt employees include, but are not limited to, managers, administrators, supervisors, chefs, commercial drivers, domestic employees, and commissioned salespeople. Until recently, when an employee sued an employer for unpaid overtime under the Fair Labor Standards Act (FLSA), there was a strong legal presumption against the employer,
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Health Law Primer: Prohibition Against Kickbacks

It is a crime for any person to pay or receive anything of value if even one purpose of that payment is to induce the referral of a patient for a health care good or service. This prohibition exists in Federal law and, in various permutations, often exists in states’ laws as well. On the Federal level, this restriction does not apply if and to the extent that the arrangement fits within one of approximately twenty-five fact patterns that appear
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Carlos H. Arce, Esq. Interview

https://www.telemundo51.com/noticias/destacados/Los-gastos-m_dicos-tras-la-mordida-de-un-mapache_TLMD---Miami-493540311.html

Prescription Management” Company For Physicians Accused of Fraud

Allegations against a company in Texas that acted as a “prescription manager” for physicians, finding the highest reimbursed drugs in various health plans and encouraged physicians to prescribe those drugs. There is some indication that select pharmacies filled the prescriptions with certain financial benefits going back to the doctors. Based on the article it appears to be a fairly large operation. The company, for its part, claims it did nothing wrong; having had attorneys review and approve their business model.
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Drug Manufacturer Accused Of Kickbacks By Providing Nurses

A lawsuit filed by the State of California alleges that the drug maker, AbbVie, induced physicians to over-prescribe Humira, a drug used for the treatment of rheumatoid arthritis. The alleged kickbacks included supplying nurses to go to the patients’ homes as an extension of the physicians’ practice to administer the medication and complete physician’s administrative paperwork. The suit alleges that the nurses, paid by and working for the drug company, looked out for the drug company’s interests, not those of
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Medicaid Taxi?? Fraud

A group of taxi companies allegedly took up a unique way of competing with ride share companies like Uber and Lyft; Medicaid Fraud. A New York man entered a plea agreement last week to a health care fraud conspiracy involving millions of dollars’ worth of fraud in charges for patient transportation. Medicaid pays for non-emergency medical transportation for beneficiaries who cannot afford their own transportation. Through a combination of kickbacks and fraud including charges for rides that never happened, the
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How Florida’s New Controlled Substance Regulations Impact You

Article Written By: Carlos H. Arce, Esq. On March 19, 2018, Governor Rick Scott signed into law House Bill 21, adding new legal requirements on healthcare providers who prescribe controlled substances, and specifically geared towards opioids. In recent years, the opioid epidemic has affected the public health of the United States. Many states have adopted new laws that add new requirements in prescribing controlled substances. Healthcare providers all across the country have had criminal charges filed against them for violations
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Medical Malpractice Defense: Misreading Imaging Reports

When patients undergo diagnostic imaging tests, it is reasonable for them to assume that the results will be detailed enough for their provider to interpret them accurately. Medicine is far from an exact science, though, and the images that result from X-rays, CT scans, and MRI machines can be challenging to read in certain cases. When an imaging test does not yield clear results, the physician has a duty to order additional scans or to perform some other kind of
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Medical Malpractice Defense: Insufficient Credentialing

When a patient receives substandard care and suffers an injury or dies as a result, his or her treating physician can expect to face a medical malpractice lawsuit. It is rare for the provider to be the only defendant, though, because claimants want to recover as much compensation as possible. By naming multiple individuals or organizations in their claim, injured parties are not limited to recovering from a single insurance policy and therefore increase their chances of securing a sizable
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Medical Malpractice Defense: Wrongful Birth

It is always tragic when a newborn sustains a birth injury or is diagnosed with a birth defect. Depending on the nature and severity of the infant’s condition, parents may incur millions of dollars in costs due to healthcare, mobility aids, medical equipment, and home care before the child has even reached preschool age. Because the financial burden can be so great, parents are often left searching for any possible way to maintain financial security and help their child live
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Medical Malpractice Defense: ADA Violations

Implemented in 1990, the Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against people with disabilities. The ADA applies to numerous contexts including employment, pubic transportation, telecommunication, and medical care. Title III of the ADA covers private hospitals and clinics while Title II covers public hospitals and state- or federal-run clinics. Both sections require healthcare providers to accommodate patients with disabilities by ensuring full access to their facilities and modifying policies, practices, and procedures as
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Medical Malpractice Claims: When to Settle & When to Fight

Most practicing physicians will face allegations of medical malpractice at some point in their careers. According to The New England Journal of Medicine, 75 percent of providers in low-risk specialties will face a claim by 65 years old, as will 99 percent of physicians in high-risk specialties such as neurosurgery and thoracic-cardiovascular surgery. Facing a lawsuit is not really a question of if for most providers but, rather, of when. If you recently found out that one of your past
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Could I Lose My House in a Medical Malpractice Lawsuit?

Upon learning that a patient intends to sue you for medical malpractice, it is natural to imagine all the worst possible outcomes. In addition to worrying about your reputation, you may be concerned about losing your license to practice medicine or even losing your home and other assets. Although 80 percent of medical malpractice claims do not result in any kind of payout, 20 percent of these cases do result in compensation for the claimant, and monetary awards are often
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Medical Malpractice Defense: Newborn Clavicle Fractures

A clavicle fracture, or broken collarbone, is a fairly minor birth injury that often happens during difficult vaginal deliveries. Although such fractures typically heal in a matter of weeks without any medical intervention, new parents often look for someone to blame for this complication. If you are being sued over a newborn clavicle fracture, it is essential to start planning your defense immediately. The Florida medical malpractice defense lawyers at Lubell Rosen are here to help. After evaluating the circumstances
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How Can Medical Malpractice Result in Brain Damage?

A brain injury can have lifelong repercussions that affect nearly every aspect of a person’s life. Some of the most common causes of brain damage include motor-vehicle collisions, sports injuries, falls, strokes, and drug abuse. Medical negligence can also cause brain damage—even when the procedure does not target the central nervous system. If you are being sued for a procedure you performed that allegedly resulted in brain damage, you should seek legal counsel as soon as possible so you can
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Medical Malpractice Defense: Lack of Informed Consent

Regardless of how much experience you have diagnosing and treating a particular condition, your patients ultimately have the final say. In most cases, people have the right to choose their scope of care, and their providers must respect this right. In order to make reasonable and relatively safe choices, though, patients must have some understanding of their options, as well as the advantages and potential side effects of each treatment modality. This is called informed consent, which is a legal
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3 Common Prescription Errors & Advice for Doctors Being Sued

Medication errors take many forms. For example, pharmaceutical companies can produce defective drugs, advertisers can misrepresent the medication, doctors can prescribe the wrong drug, pharmacists can prepare the wrong prescription, and nurses can administer the wrong dosage. According to the U.S. Food & Drug Administration, common causes of medication mistakes include poor communication, job stress, lack of adequate training or experience, ambiguities regarding the prescription, misapplied techniques, and patient confusion. Despite the fact that various parties could ultimately be responsible
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What Are “WSPEs” and Why Do They Occur?

Doctors throughout the United States perform millions of surgeries and other medical procedures every single year. In 2010, for example, doctors completed approximately 51 million inpatient procedures and 48.3 million outpatient procedures. When diagnosing and treating patients, providers always take steps to avoid mistakes, but when you consider just how many surgeries are performed annually, it is almost surprising that more errors do not occur. According to WebMD, doctors make approximately 4,000 preventable mistakes during surgical procedures every year. Between
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Medical Malpractice Defense: Retained Surgical Bodies

The operating room is a chaotic place. Even during routine procedures that pose few risks, surgeons are essentially racing against the clock to ensure they complete everything before the anesthesia has worn off or complications arise. Doctors need to be cautious of moving too fast in the OR, though, because rushing through a procedure can also cause complications. For example, surgeons who do not make precise incisions can puncture an organ or damage nearby nerves. Likewise, those who race to
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Medical Practice Policies and Procedures and Why You Need Them

Article Written By: Carlos H. Arce, Esq. During your time in medical school you never imagined that managing your own medical practice would have little to do with the practice of medicine. Medical school likely did not prepare you for the legal consequences that come with the modern-day business of medicine. Many physicians are forced to sell their practices, or worse, due to the legal liabilities that may come with owning a medical practice. A medical practice is typically composed
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Medical Malpractice Defense: Ultrasound Errors

Most people probably associate ultrasound scans with pregnant women who are eager to get a glimpse of their growing baby, but experienced providers know prenatal imaging is just one of the many uses of ultrasound technology. At the end of the day, sonography is a valuable diagnostic tool that helps doctors identify conditions affecting various organs throughout the body, including the heart, liver, spleen, gallbladder, pancreas, kidneys, bladder, uterus, ovaries, and testicles. According to the American Cancer Society, for example,
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3 Common Malpractice Claims & Advice for Doctors Being Sued

Practicing medicine is one of the most stressful professions in the modern world. Doctors may be different from police officers, soldiers, and construction workers in that their own lives are not at risk, but they must bear the burden of protecting others’ lives every single day. Unfortunately, since medicine is far from an exact science, healthcare providers are not always able to save their patients. Regardless, people expect a lot from their physicians, and when complications arise, malpractice lawsuits are
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