Second Opinions • Patients Who Make Bad Payments • Paying Marketing Agents

QUESTION: When a patient obtains a second opinion, where does the responsibility lie in notifying the patient of the results? Would it be the responsibility of the initial physician or the physician who provided the second opinion?

ANSWER: After evaluating the patient, a second-opinion physician should provide the patient with a clear understanding of the opinion, whether or not it agrees with the recommendations of the first physician.

QUESTION: We have a patient who has a history of making bad payments. This patient currently has outstanding bills with us and is trying to see a new physician without paying for the amounts that are owed to our practice. Can I tell the new physician about this patient's bad payment history?

ANSWER: You should not instigate a call to the new treating physician to warn them about the patient’s financial status; however, if the new physician asks for the financial information on the patient (their insurance coverage or other billing and demographic information that can assist the new physician in having their services paid) you can share this information with the new treating physician and not violate HIPAA.

You should not instigate the contact because this disclosure has nothing to do with treating the patient (which HIPAA allows and provides for free flow of information), and unless this information is requested by the new physician this disclosure could be a violation if the patient found out and complained. Also, physicians could face a patient civil action for defamation of character or other related causes and should not take this unnecessary risk.

QUESTION: I am thinking about contacting some patients whom I haven't seen for a few years to tell them about some new techniques and procedures we are doing. The method I plan on using is paying a marketing agent a percentage in relation to the patients that come in. Is there anything unethical about this?

ANSWER: CMA ON-CALL document #0205, “Physician Advertising,” states that a marketing agent can be used but only if you carefully set up your arrangement. In addition to confirming that the advertising by the marketer complies with all of the aforementioned limitations on physician advertising, you must be sure that your payment is strictly for the fair market value of advertising or promotional services of the marketing agent. Any payment in excess of that fair market value would appear to constitute an illegal payment for referrals. Payment cannot be based on the number of referrals received.