"FORUM SELECTION CLAUSES" ARE ILLEGAL IN PUERTO RICO

Last October 4, 2014, the Court of Appeals of Puerto Rico decided that “forum selection clauses” are illegal and cannot be included in the documents to be signed by a patient as a requirement prior to receiving medical attention. This is the case of Hospital Español Auxilio Mutuo v. ELA de Puerto Rico, KLAN 201301848.

These so-called forum selection clauses have been inserted in the documents to be signed by patients by hospitals and medical offices in Puerto Rico, usually in very fine print at the bottom of the hospital’s administrative documents.

These classes have the ill-advised intent of preventing medical malpractice victims from having their cases seen by a jury in Federal Court, forcing them to file their cases only in Puerto Rico State Court.

The Court of Appeals reversed in its entirety and remanded back the Court of First Instance the decision. In doing so, the Court of Appeals validated the Puerto Rico's Patients Procurement Office regulation prohibiting the use of forum selection clauses within said medical documents.

Even more important, the written opinion by the Court of Appeals went beyond and recognized that even without the regulation, the forum selection clauses are illegal as they go against Puerto Rico public policy.

>This case has been a big triumph for patients in Puerto Rico and abroad and lays the foundation for new cases in favor of medical practice victims.

ASES Pays Insurance Companies Twice

According to an article on February 18, 2014, by “El Nuevo Día”, the Health Insurance Administration (“Administración de Seguros de Salud” or ASES) will try to recover 9.7 million dollars, for payments made twice to twelve insurance companies. These insurance companies provided services to beneficiaries of “Mi Salud” and “Medicare Platino”. During an audit, from January 2011 to June 2013, ASES noticed that they had paid insurance companies twice during that period for a total of 2.8 million dollars. The audit was extended to 2006. Ricardo Rivera, the Executive Director of ASES, expressed that irregularities were discovered in 500,000 of the 100 million transactions that were analyzed. According to Rivera, the double payments from ASES are because of two irregularities: 1) beneficiaries who change address and region, but are still register under a different region and 2) beneficiaries who change their family’s composition, but are still registered under their previous family composition, for example a son who marries and now has a new family composition, still register under the family composition he had with his parents and siblings.

Among the insurance companies who were paid twice are: MMM, Humana, PMC, American Health, APS, Cosvi, FHC, Mapfre, First Medical, “Salud Dorada”, Triple-S and MCS. Most of the double payments, around 3 to 4 million dollars, were paid to Triple-S and MCS. Rivera indicated that these results are only from 16 audits that “Mi Salud” is currently under, since March 2013.

To recover the 9.7 million dollars, originally 13 million, ASES will make deductions from these insurances companies’ premiums, since they have contractual relationships with the administration. 84% of these double payments are intended to be recovered this way, while the remaining 16% will be recovered through formal procedures.

Rivera indicated that the information system currently used by ASES is not prepared to detect when an insurance company is paid twice, this task is done manually, verifying each invoices with a list of beneficiaries according to the different regions. ASES hopes that in the next years these transactions are made electronically. Rivera expressed that “it is our responsibility to safeguard that the funds destined to provide services to the 1.7 million of beneficiaries from PSG (and “Medicare Platino”) are correctly used and that the payments made correspond to the services billed.” He also indicated that measures have been taken, through a plan of corrective action, to identify and prevent the risk of emitting incorrect payments when billing.

It is unbelievable, that while the country is undergoing an economic crisis, the Government is paying insurance companies twice. While insurance companies receive a double payment, the patient continues to pay an extremely high premium for a health care plan and continues receiving the same quality of medical treatment, which sometimes is awful. How is it possible that ASES failed to notice that it was emitting a payment twice, for the same person, to a same insurer? The same applies to the insurers. How is it possible that they failed to realize they were receiving a payment twice for a same person and for a same service?

We hope the ASES manages to recover the 9.7 million dollars it has paid the insurance companies in excess and that this mistake does not affect the beneficiaries of “Mi Salud” and “Medicare Platino” and the patients in Puerto Rico.

Amendment to the Health Insurance Code Diminishes Hospitalists Power

On February 3, 2014, Puerto Rico’s Legislature approved Bill Number 5 in order to amend the Health Insurance Code. The amendment states that only the doctor is the one who can decide over the hospitalization of the patient. Therefore, the determination regarding the hospitalization of a patient does not falls on the heath care insurer or the hospitalists, but it is only and exclusively a determination taken by the doctor who is treating that patient.

According to the article published by NotiCel on February 10, 2014, the billed was promulgated due to information made public during 2013, in which hospitalists, following health care insurers’ instructions, allegedly were revoking doctor’s orders to hospitalized patients. The bill was promulgated by Senator Ángel “Chayanne” Martínez, while Representative Lydia Méndez promulgated a substitute bill, which expanded the bill’s reach.

As part of the amendments, the concept of “medical necessity” is defined as a criterion that must be considered in order to prevent hospitalizations that are not justified by the patient’s condition or that benefit economically the heath care insurers.

The president of the Committee on Banking, Insurance and Telecommunications, Senator Ramón Luis Nieves, expressed that “with this bill, we assure that the treatment that the patient really needs is provided, and not the one the heath care insurers are willing to pay.”

We believe that the amendments to the Health Insurance Code, through Bill Number 5, are necessary. Health care insurers are not doctors, therefore they are not qualified to decide which patient needs or does not need to be hospitalized. Only the doctor who is treating the patient knows if his or her conditions merit a hospitalization.

We hope that this amendment to the Health Insurance Code, benefits patients and that their health are no longer manipulated by health care insurers actions in order to gain economic benefits.

Three Doctors from Puerto Rico Plead Guilty to Fraud

Three doctors from Puerto Rico have pled guilty to fraud to the extinct Board of Medical Examiners and pled guilty before the Federal Court for the District of Puerto Rico. These accusations are part of a group of approximately 90 accusations from the federal government against doctors who obtained their medical licenses fraudulently through the payment and bribery of members of the Board of Medical Examiners. The incarceration sentences are approximately of two years.

In particular, Dr. Gilberto Rodríguez Santiago, a known obstetrician and gynecologist from Arecibo, pled guilty of payoff, in order to fraudulently obtain a medical license for his daughter and other people. Also, this doctor was accused of threatening government witnesses when he found out he was being investigated, for which he was and kept in prison for some time. Federal prosecutors also accused the doctor of being linked to drug trafficking and informed that he possessed boats, a helicopter and some properties. Sometime, after he was set free under bail.

We congratulate the federal prosecutors in Puerto Rico for doing an excellent job, a job that the Government of Puerto Rico was supposed to do.

$5 Million Dollar Sentence from the San Juan Court

Judge Olga Gacría Vicenti from the Court of First Instance, Superior Court of San Juan, issue a $5 million dollars ($5,000,000.00) sentence against the Pediatric Hospital of the Medical Science Campus, in a case where the plaintiff alleged that medical malpractice caused cerebral damages to a minor. The sentence imposed 2 million dollars for distress and emotional suffering and more than 2.5 millions dollars in the estimated costs of support and medical treatment of the minor due to his condition. Even though the sentence was reduced to $75,000, due to the limit established by the Actions Against the State statute, the medical malpractice victims in Puerto Rico can now count with a new millionaire compensation precedent.

American Association for JusticeAmerican Bar AssociationFederal Bar AssociationIndustrial Association of Puerto Rico

Offices

Chicago-100PuertoRico-100washington dc100