Health Law Pointers - Volume VII, No. 2


Physicians frequently are solicited to participate in various investments, from ambulatory surgery centers to mobile medical technologies and medical equipment.  These solicitations are often accompanied by offering memoranda and materials outlining the terms and conditions of the investment. 

Here are some pointers to consider when evaluating investment offering documents:

·        Does the investment involve an unproven or novel concept (which may involve significant risk) or does it involve a concept that is a more typical or “mainstream” investment?

·        Amount of Investment – How much will you be required to pay for the investment? 

·        Requirements for additional capital - Will you be required to make additional payments to maintain your investment?

·        What is the operating history of the business/entity in which you are being asked to invest?

·        Do the company executives have managerial expertise?  It is important to review the qualifications of the individuals who manage the business in which the investment will be made. 

·        Is there an opportunity to participate in the management of the business/entity if desired?

·        Are the financial projections reasonable?  The physician should have the financial projections for the business reviewed by an accountant.

·        What is the expected return on investment? Are the underlying premises reasonable?

·        What, if any, are the tax benefits of the investment?  Is the timing of the investment appropriate for tax planning purposes?

·        Are there any regulatory issues that may restrict or prohibit the physician from participating in the investment (i.e., Stark law, anti-fraud and abuse laws, etc.)?

·        Exit Strategy – Under what circumstances may you “cash in” the investment? Are there any restrictions on transferring the investment to others, including family?

The evaluation of an offering memorandum requires an understanding of complex legal and financial issues. Physicians considering an investment solicited through an offering memorandum should consult with their legal and accounting advisors to assist them in evaluating these offerings.



            There appears to be a growing trend toward longer retention of medical records, at least in New York State. 

Under current New York law, medical records for adult patients must be retained for a minimum period of six years.  However, the length of time that medical records should be retained may be subject to retention requirements imposed by Medicare or other third party payors.  Many malpractice carriers recommend that records be kept for up to ten years for liability purposes. 

A bill recently sponsored in the New York State Assembly would noticeably expand the retention requirements for certain institutions by amending Article 28 of the New York Public Health Law to require hospitals to retain patient records for a period of at least 25 years.  The bill would apply to patient records maintained by hospitals and also to patient records maintained by health maintenance organizations (“HMOs”) and similar organizations, “if such organization accepts patients pursuant to a health care or insurance plan provided as a benefit to employees of the State or any political subdivision thereof.”

The bill would permit hospitals to dispose of patient records before the end of the 25 year retention period as long as reproductions of the records are “maintained and made accessible.”  It is not clear from the language of the bill whether hospitals and HMOs would be permitted to store all reproductions electronically, thereby eliminating the need for retention of the original paper records. Presumably, regulations promulgated by the Commissioner of Health would address this issue. 

As of the date of this article, the bill has not been passed into law and has been referred to the Assembly’s Health Committee for further consideration.  Health care practitioners should be aware that retention of medical records continues to be a significant issue.  It is important to have adequate on-site retention procedures to comply with patient record retention requirements and to contract, if necessary, with off-site storage providers to assure that medical records are properly stored and readily accessible. 



Individuals with sensitivity to perfume or cologne may suffer medical complications from exposure to strong perfume or cologne.  Complications may include allergic reactions that cause difficulty in breathing or an asthma attack.  Others may suffer from headaches, dizziness or lightheadedness as a result of exposure to strong perfume or cologne.

Many medical practices do not have a formal policy regarding the use of perfume or cologne by employees, nor do they have any guidelines with respect to their patients or visitors.  “Scent” policies are a fairly new development and are not typically found in standard employee handbooks.  Often, the need for a policy is not recognized by an employer until after an individual suffers an adverse reaction to strong perfume or cologne, or an employee, patient or visitor registers a complaint with the medical practice.   

Medical practices should not disregard complaints concerning exposure to perfume or cologne in the workplace, particularly when those complaints are made by employees who suffer from asthmatic conditions.  Asthma is recognized as a disability under the federal Americans with Disabilities Act, and an employer may be required under certain circumstances to provide a reasonable accommodation to an employee suffering from asthma.  

A scent policy can serve as a starting point for medical practices seeking to be pro-active on this issue.  In formulating an appropriate scent policy, the following should be considered:

·        Will the policy prohibit the use of all perfume or cologne (no tolerance), or only the use of strongly scented perfume and cologne (restricted use)?  While a restricted use policy may seem more moderate than a no tolerance policy, it is also more subjective and therefore may be more difficult to enforce.  

·        Will the policy apply only to employees, or also to patients and visitors to the medical practice?  The more inclusive the policy, the less chance that an individual will have an adverse reaction.  

·        Do any of the medical procedures provided by the medical practice require a purified environment?  This may be an additional justification for adopting a policy, particularly if the policy will also apply to patients and visitors to the practice, who may otherwise object to the policy.

Once a scent policy is adopted, it is important for the medical practice to monitor compliance with the policy and enforce the policy on a consistent basis.  


Copyright © 2005 Hurwitz & Fine, P.C. All Rights Reserved.

Newsletter Sign Up