Lessons From A High Risk Lawyer​

Scott Rattigan, J.D.

Yeah, thanks for having me. I’m happy to be here.

Cheng-Huai Ruan, M.D.

Yeah. So your origin story, or your hero story, is a little interesting. So, let’s just start. How did you become into this sort of micro-niche as an integrative health lawyer, a functional lawyer?

Scott Rattigan, J.D.

Yeah, probably like a lot of providers, it kind of came through a personal journey. So, this time it was secondhand. So my wife went to an IFM conference, about seven years ago now, and, you know, got the bug like most of them do, and started her practice about 6 months to 12 months later. And at the time, I was working at a big law firm, a white shoe firm. You know, lots of money, but lots of time away from my family.

Cheng-Huai Ruan, M.D.

Right, right.

Scott Rattigan, J.D.

We had two young kids, and she started her practice, and so each night after I chugged coffee all day and didn’t really eat that well, I’d try to help her set up her practice on the couch at night before passing out. Well, fast forward a couple of years, and I’m burnt out, right? We’re talking about burnout here. So, I’m burnt out at my firm, and I’m looking for something else. And so I really was looking for a smaller firm trying to help entrepreneurs, when kind of a crazy opportunity came up with Evolution Medicine. And so I talked to James Maskell, and ended up working with him and Gabe, and Uli for a few years, kind of helping with practitioner support, and engaging on their practice accelerator. And in doing so, I came upon the realization that we had, with my wife, when I was at the firm, we went to the healthcare attorney upstairs.

Cheng-Huai Ruan, M.D.

Oh, yeah.

Scott Rattigan, J.D.

So, big firm, downtown Orlando, and offices all over the place. Akerman, if anyone knows them. And at the time, I was doing commercial litigation. So, not healthcare law at all. We went to the healthcare partner upstairs and said, “Can you help us out?” After paying what was a lot of money at the time, about $2,500, he didn’t help us at all. And it’s not really his fault. So, I’m quick to clarify that. Lawyers that don’t know what functional medicine is, or how to address it, it’s not their fault, they just haven’t had the training or exposure. Much like many PCPs are kind of skeptical of integrative or functional medicine just don’t have the exposure, right? 

So we paid him the money and he said, “Well, I don’t really know how to help you. Do you have any templates or anything, or documents I can review?” And so we were like, “No, that’s why we paid you. And how about our same firm discount?” But so anyway, I was so burnt out, and the opportunity came up, and so I just said, “You know what? I can always get a job in law. Let me explore this with Evolution Medicine.” So I ended up doing that for about a year and a half, and then as I realized that, you know, nobody was covered legally. I was talking to doctors every day, and then when they would see my initials, my J.D. after my name, they would start asking me legal questions.

Cheng-Huai Ruan, M.D.

Absolutely.

Scott Rattigan, J.D.

Yeah! What I found was, you know, someone bumps into you at a cocktail party, you got to answer medical questions, right?

Cheng-Huai Ruan, M.D.

Yes.

Scott Rattigan, J.D.

So what I found was, a couple of things were happening. People like us tried to find a healthcare attorney, and it didn’t work out, the healthcare attorney didn’t know how to address their issues. Number two, they went to somebody that said they understood it, but ended up paying, you know, 20, $25,000 for the whole set up when everything was said and done. Or they did neither of those two things, and they just asked a bunch of colleagues on Facebook, or at conferences, or they grabbed one from whatever training they went to last, and kind of called that a day and said, “This is good enough.” But the problem with that is, that last one, which I call the “world’s worst law firm,” Facebook, Google, and peers, LLP, is that they, they don’t know what they don’t know. Right?

Cheng-Huai Ruan, M.D.

Right.

Scott Rattigan, J.D.

So even, today I had a couple of appointments, and people, I said, “What’s your plan for HIPAA?” And people said, “Well, I’ve got a notice of privacy practices. And my EMR is HIPAA compliant.” Well, that’s really the tip of the iceberg. So, it’s a long story, I’m trying to make it shorter here, is that, you know, I decided this is something that I need to address, it needs to be affordable, and it needs to be kind of comprehensive. They need to know why they’re doing these things in addition to having the tools, like templates, or documents in place. So, I founded Functional Lawyer in consultation with a firm here in Florida that wrote the documents, and reviewed what I had at the time, and wrote them to be as applicable nationally as could be, and then came up with an education curriculum for providers. 

Because this isn’t your specialty, it’s mine, and so you don’t need to pay $25,000 for what I understand to be horses instead of zebras. And so I’m not here to take the place of an attorney when your needs are acute, or when the situation calls for it, but you don’t need to pay 500 bucks an hour for learning the difference between an LLC and an S-Corp, or why you should use an informed consent, or why you need to do more than just have a notice of privacy practices for your HIPAA policy. So, not very short, but that’s kinda how it kind of came to be, just kind of through my wife, and then through discovering that there was a need, and then trying to fill it.

Cheng-Huai Ruan, M.D.

All right, and this is confusing to me, and I’ll tell you why. You know, we have multiple types of audiences that are listening to this, not just integrative health and stuff like that. This is confusing to me, because, you know, I feel like healthcare attorneys should be very well versed in healthcare, and healthcare should be delivered in a very similar way. What is so special about this sort of field of functional integrative health from a legal standpoint, that’s different than, you know, other practices?

Scott Rattigan, J.D.

That’s a great question, and the answer is, not that much, to be honest with you. So, HIPAA’s the same no matter what. Telemedicine laws are the same, no matter what. Hiring people, firing people, those are the same, although that’s actually employment law. That’s all the same. Setting up a corporation or an entity.

Cheng-Huai Ruan, M.D.

Right.

Scott Rattigan, J.D.

Anybody could do that. Where it kinda gets different is really in the delivery of care, the pricing model, and the modalities that are happening in these offices.

Cheng-Huai Ruan, M.D.

Gotcha.

Scott Rattigan, J.D.

If you say chelation to a normal healthcare attorney, or a conventional healthcare attorney, they’re not gonna know what that is. If you talk about ozone, they’re not going to know what that is, except for, you know, our environmental issues that we all grew up with in the eighties and nineties. Right? So, that’s really where the rubber meets the road, is interactions with patient. So now, if you’re outside of the insurance model specifically, or particularly, you actually have to do customer service, and worry about refunds, and now you have to actually do marketing instead of worrying about your insurance plan just kind of feeding you people, feeding you patients throughout. 

So, it’s a little bit different in the claims you can make. You are very much still a minority in the functional and integrative world. As much as we know that it’s growing each day, it is still, medically, not conventional, or not the majority. So, there’s this kind of the business aspect of it between customer service, and then when the medicine gets delivered, making sure that the medicine that’s delivered is backed by evidence, and then that the patient knows that. And the patient has kind of has their eyes wide open to anything that they’re walking into. And that is actually where the most liability occurs.

Cheng-Huai Ruan, M.D.

Yeah, I can imagine, you know? Different practices set up things differently, the fee structure’s different. You know, I’m in an insurance-based practice. Are fee sources different? Are collections different? You know? But I think that we have to all learn the lessons from who really carries the highest risks, we’re in very unique markets, and they utilize that as sort of worst case scenarios, and then build upon those things. So, you prepare for the worst, but then that way, whenever the best comes, you feel much more satisfied with it, and it’s a sense of security. And that’s something I appreciated very early on within my own company, my own practice, but now it’s something I truly appreciate. And so tell me this then, you know, I, myself, currently probably have a lot of myths about the space that you’re in. So tell me, what are the biggest myths that you kind of hear from your practitioners?

Scott Rattigan, J.D.

Yeah, there’s a few of them. And before we get to that, you mentioned like kind of peace of mind, or sense of security. I know that, you know, people that are reluctant to invest, and they want to go to Google or Facebook, invest in their own legal security, are reluctant to, because it costs some money, and it’s not free, right? But it’s almost like being a patient of a functional medicine or integrative medicine practice. Right? Like you can continue doing what you’re doing, or if if you want help, you kind of need to be proactive about it. And I say sense of security, because this theme comes up over and over, where, you know, and this may not be everybody, but some practitioners, and I would say a lot, are kind of scared to market themselves, to get, you know, quote unquote “too big,” so as not to attract attention to themselves, because they’re not actually sure, or they’re not confident, or secure in how they’ve set up their practice. 

But I want to answer your question about myths, so, it kind of dovetails in. So the biggest myth that I see is that you can see somebody once, and then they can fly with the rest of the world, and then you can continue seeing them, right? If they fly to you, then you can practice across state lines. Or even practicing across state lines, there’s a lot of misinformation about that. But to be clear, when we’re talking about that sort of thing, and telemedicine, which is like the biggest question that I get these days, the fact of the matter is, if the patient is located in a state in which you’re not licensed, you are breaking the law, committing a criminal offense by practicing medicine across state lines. 

End of story. If you’re not licensed in the state where the patient is located, I’m gonna repeat it again, the patient is located, it’s a crime and there are civil penalties as well. Now I know, and you know, Cheng, that there are lots of people out there that still do it, right? They practice medicine across state lines. They’re definitely not licensed in more than one state, or definitely not, you know, more than a handful of states. And you know, that’s the second question I get. The first is, “How do I practice across state lines?” And so I have to kind of shoot that down. The second is, “Well, what about so-and-so?” Well, so-and-so is probably not doing it correctly. Right? Lots of people drive 80 miles an hour in the 70-mile an hour zone. Just because they haven’t been pulled over, doesn’t mean you won’t be, right?

Cheng-Huai Ruan, M.D.

Absolutely.

Scott Rattigan, J.D.

Yeah. So my answer is, there’s enough people in your state usually, unless you’re in the tiniest of states, there’s enough people in your state to go around and fill up your schedule as a solo practitioner, and even as a two or three person practice. There’s plenty of people. And in fact, lots of states now are lowering the barriers to get licensed. And where I live in Florida, they passed a law in 2019, so pre-COVID, and it’s on the statutes, so it’s not going anywhere for a while, that doctors and practitioners of lots of different levels can get a license to practice telemedicine in Florida if they’re licensed in another state in the country. And it’s free to do, the state doesn’t charge you any money. 

You may incur a fee from your own state’s licensing board to forward your records to Florida, and you do need to have a registered agent in Florida, and if you don’t know anyone here, then you may have to pay between $35 and $50 a year for that. But that’s it. So between your own state, let’s just say 10 million people, and Florida, it has 23 million people, or 22 million people, you can fill up your practice with about 300 patients. Right? And you know, I’ve done the math. If there’s five patients a day for most functional practitioners, that’s 1,250 patient slots a year. If they all come four times, that’s 300 patients, or just a little bit over that. So, I actually have a guide, a free guide, that people can download from from my website. It’s functionallawyer.com/florida. functionallawyer.com/florida It’s a six-step guide, it’s a free PDF. You can take it, get your license. And my members, my clients, tell me it’s very easy, it’s only takes a day or two, so.

Cheng-Huai Ruan, M.D.

A day or two to get a state medical license? That’s almost unheard of before.

Scott Rattigan, J.D.

Yeah! And you don’t have to pay $800 to some clearing house to kind of do your background checks and all that, they just kind of take the word of your home state’s medical licensing authority. And that’s it. Now don’t call me on the day or two, but it’s pretty seamless.

Cheng-Huai Ruan, M.D.

So, let’s rewind a little bit, ’cause you said something really important earlier about crossing state lines. What if it’s an established patient in your practice that went to another state on vacation, you’re doing telemedicine with them because they got COVID? Is that a situation where it’s okay, or still not an okay thing?

Scott Rattigan, J.D.

Well, you threw the COVID in there at the last second, and so I had the answer until you threw that one in. Yeah so, most states have what’s called an exception for infrequent or episodic care.

Cheng-Huai Ruan, M.D.

Okay.

Scott Rattigan, J.D.

So in the case where someone’s on vacation, sure absolutely. You know, they’re a resident of your state, that’s their permanent residence, and they’re there, you know, 358 days a year, except for that one week vacation they took, right?

Cheng-Huai Ruan, M.D.

Right.

Scott Rattigan, J.D.

Where it gets a little more confusing is where there are snowbirds involved, or a kid goes to college out of state, or you have a patient and they move away. So, what’s happening with telemedicine is kind of the same thing that happened with Uber or Lyft. Right? So, industry is outpacing the laws that were written for an old model, or old modality, right? So, Uber and Lyft, if anyone recalls, had to go into each city, city by city, and help them write ordinances for ride sharing apps. Before that, the taxi cabs had a monopoly, and it was really expensive to get a taxi cab license, or a medallion. 

In New York City, it was like 300, $500,000 for one taxi cab. Uber shows up, and all the taxi cab companies are upset. Right? And they said, “No, no, that law doesn’t apply to us. We’re not a taxi cab company. We’re not a livery service.” Which actually goes back a few hundred years, but, “We are just a ride sharing app, that’s it.” And so they had to spend lots of money writing the ordinances, city by city, to kind of address some sort of regulation around ride sharing that wouldn’t make the taxicabs too mad, and would help Uber and Lyft, you know, give the people what they wanted, which was a new service that was a little bit more functional. So with telemedicine, what’s happening is that industry is outpacing regulation. Now one of the silver linings with COVID is that the state legislatures, and the medical boards, they’re all paying a lot more attention to telemedicine these days. You asked me about the biggest myth earlier. The biggest myth in the last 18 months has been, “Oh, it’s COVID? We can just practice across state lines whenever we want.” And that’s absolutely not true. Same thing with when the federal government said Medicare could be practiced across state lines. Either ignorant or lazy journalists kind of made the headline, or maybe they’re just looking for good headlines, that, “Oh yeah, you can now practice across state lines everywhere.” And people that don’t know to read for the fine print kind of took that at face value. 

So, practicing across state lines is one of those things where, you know, I hope the silver lining from COVID is going to be within 5 to 10 years, there’ll be more states like Florida, where all you have to do is register, and verify that you have a license, you’re in good standing, and you have malpractice, right? Then you can practice in each state. As it stands right now though, you know, Florida is one of only 10 or 12 states that even have some form of this. In Florida, and West Virginia actually, are two of the most liberal as far as there’s no restrictions, other than you can’t open an in-person practice in the state. So, West Virginia and Florida’s laws are very, very similar. By contrast, Texas has a law that allows telemedicine practice, and you’re in Texas. But if you’re an out-of-state provider, and you want to get a telemedicine only license in Texas? You’re really limited to the interpretation of diagnostic testing, for which the results have to be forwarded to a Texas provider, or for the continuity of care, the majority of which happened outside of Texas. 

So if I, so let’s say your question, where somebody lives in your state, let’s say Florida, and they moved to Texas, and I haven’t seen them for 10 years. Well then it might apply to me, Texas’ license. But for the majority of providers out there today, it’s not even worth applying for that license. So, long story short, I hope that in the next 5 to 10 years, a lot more states will adopt kind of open borders like this. But for the time being, my recommendation to most people is just to focus on your state, you know, get your Florida telemedicine license, and then that’s 30 million people to draw from. And, now, hopefully not everybody at this summit will go ahead and compete for the same patients, but I still think that there’s enough to go around for everybody.

Cheng-Huai Ruan, M.D.

Oh, yeah. There’s definitely plenty. And, you know, this whole issue of crossing the state lines is such a murky area. And you know, I’ve actually paid lawyers to define this for us in our practice. And it’s three different lawyers with three completely different answers. So I feel like, and this is in the height of the pandemic, which technically is right now, we’re still in the height of the pandemic, but this is during the height of the confusion of all the CMS changes that came out. Like day, after day, after day, during, I think it was April, April to June. Like there were just so many changes in billing codes and all this stuff like that. And so, it becomes, you know, very stressful doing stuff like this. And not only that, you know, I think a lot of our patients come from outside of different states too. 

But generally, they’re in person, and they’re staying at a hotel or something like that. Right? But once again, the location is actually within the state, so we understand that. And a lot of times they want to follow up on telemedicine, which that makes it pretty tricky. You know, they want to follow up on telemedicine, they come in once in awhile. And I think every state has different laws. Texas has specific guidelines for that, and it’s still a great area. But you’re right. I think that, just out of the safety of the practice, you know, practice within your own state. It’s just probably the best bet. You know, do the things that you don’t regret, right? That’s what I learned in life, so.

Scott Rattigan, J.D.

Yeah. And then, you know, there’s other options too. Like I always recommend, you know, lots of people, and I don’t mean to degrade anybody, but lots of people are self-important, and they feel good when they’re getting calls from all around the country, and some people, across the world. And they’re like, “But these people need me.” I’m like, “Yeah, that’s great. And I’m sure you’re a fantastic doctor, and you treat your patients well, and you get great results, but it’s still against the law.” And so what I recommend is that, listen, you know, create an online course, a little education curriculum. 

You can make it free, or you can charge for it. And so long as you’re kind of just educating, like in prerecorded videos, and you have a little bit of a curriculum, like that’s fine. Like you can go on YouTube and talk for hours, and hours, and hours, one directional, and be educational. But when you get to start the practice of medicine, which is really not that far from just kind of having a one-on-one conversation from somebody, because your brain is the practice of medicine, then it starts to be a little bit tricky. But yeah, I mean there’s a lot of options out there to not do things the wrong way. And like you said, do it the right way and you probably won’t regret it.

Cheng-Huai Ruan, M.D.

Yeah. You know, that’s exactly what we did during the pandemic, we actually opened an online university. It’s free, it’s still free. It was only supposed to be free during COVID, but it was actually a pretty good funnel for us, so it’s still free, and people can learn about autoimmune disease, gut health, and all this stuff like that. And we’ve had about 120,000 people on the platform, so it’s very, you know, from all over the world. And so, that’s been pretty good. So now, I’m going to open this can of worms, as you did it first, YouTube, social media in general. Are there specific disclaimers, or something that we should put up specifically with social media? ‘Cause you know, on a website, at least you can click on “privacy policy,” and everything’s kind of listed there. But social media is like, there’s nothing there except, you know, your face on a screen. Are there specific disclaimers that we should put, especially when it comes to educational services?

Scott Rattigan, J.D.

You know, it’s hard with social, because as anybody with accounts knows, each one is slightly different, and in the space you get to put “about us,” or the terms, is different in each place, and they’re always changing. And two, there’s no magic words like that. You know, a lot of lay people think that in law, there’s a lot of magic words, that if you just say this, you’ll be covered.

Cheng-Huai Ruan, M.D.

I think there’s magic words, I guess I’m wrong! But there’s no magic words?

Scott Rattigan, J.D.

Very few, or at least fewer than people think, like a magic phrase that will absolve you of all your sins. But generally, if you kind of just remind people, and it doesn’t take a whole lot to say, “Listen, this is for education and informational purposes only. Always check with your physician before engaging in a new regimen of supplements, or dietary changes, or weight loss program, or anything like that.” And so, you know, these are words that most of us know just from growing up and watching infomercials about the ThighMaster, and Bowflex, and, you know, who’s latest? P90X? You know, all those guys. And so you know the language, and you don’t need me to do it. I have social media disclaimers, and you can come ask me for them, or they’re at functionallawyer.com. But really, if you just keep it that simple and say, “This is for educational-informational purposes only.” And then also in our disclaimer, I have a disclaimer for our website as well, so I’ll kind of just talk about that as well, and —

Cheng-Huai Ruan, M.D.

Oh yeah, let’s dive right into the website, because there’s a lot of sites that I see with disclaimers that’s even outdated. Some of them have templates that says, “insert company name here.” That’s still on their website that I’ve seen. So, let’s talk about how important those disclaimers and privacy policies are.

Scott Rattigan, J.D.

Yeah so, particularly on our website, and you know, what I recommend to my people is just take my website disclaimer, and then kind of cut it down into wherever it’ll fit on the social media channels. And if you don’t have enough room, just put a link, like scottrattigan.com/disclaimer. scottrattigan.com/disclaimer And you can go, “For full disclaimer, see here.” You know, “Educational-informational only. For full disclaimer, see our terms here.” But on a website, you know, it also covers things like, hey, if I put a link to a third-party site, I’m not responsible for what that third-party does, and collects, and that’s more of the privacy policy. But as a disclaimer itself, you want to make sure, hey, if I said something about, you know, a really hot topic right now is ivermectin, if I said something about ivermectin in April of 2020, or 2021, that information gets outdated really quickly. 

And so there’s a clause in the disclaimer that says, you know, we make our best efforts to make sure that this information is accurate and as up-to-date as possible, but we can’t be held responsible changes in the science, or changes in, you know, medicine, or the prevailing wisdom of the day sort of thing. So it really kind of provides, and these are all, you know speaking of ivermectin, these are all kind of like building blocks to kind of build up some security. No one thing is gonna protect you like a bulletproof vest. But these are all kind of layered in, just kind of a layered approach to, you know, reducing your risk. And nobody’s gonna reduce your risk to zero ever. But there are a lot of strategies you can do and layer in that will reduce it. And you know, you think that nobody’s gonna sue you based on some blog you wrote on your website. But, you know, we have, everywhere, examples in our lives of dumb law suits that you would never think, that now have changed how companies operate. Like, you know, the McDonald’s coffee lawsuit is a big one. Now McDonald’s, and Dunkin’ Donuts, and everybody else says, caution, really hot coffee, on every lid, right?

Cheng-Huai Ruan, M.D.

Yeah.

Scott Rattigan, J.D.

So when it comes to website, the disclaimer’s huge. The privacy policy, and that’s for any industry really, really kind of deals with cookies, how you’re using users’ data, whether you actually collect people’s information affirmatively, like you ask for their name and email address, or if you don’t do that, you’re still collecting their cookie crumbs, their data, anonymously in the aggregate, and you also need to let them know about that. It’s particularly important if you live in California, or you have people from California visiting your website, which is probably everybody, to have a good privacy policy in place, because California’s rules closely mirror those of Europe, the EU, with the GDPR regulations that, you know, people may or may not remember from 2018 that took effect and kind of gave a lot more consumers rights over what companies can do with their data, so.

Cheng-Huai Ruan, M.D.

A lot to think about. A lot to think about it that no one thinks about it, right?

Scott Rattigan, J.D.

Yeah.

Cheng-Huai Ruan, M.D.

And so, you know, this is all sort of protecting yourself legally, just from online standpoint, social media standpoint. But let’s talk about the practice for a second, all right? So, let’s talk about private practice. So yes, we talked about the social media, we talked about the website privacy policy, the disclaimers. Let’s talk about what traditionally is in a medical practice, like the HIPAA releases, and what other safety nets you really have to protect our practices.

Scott Rattigan, J.D.

Yeah. I mean, that’s a great question, that’s what I do all day. So, HIPAA specifically is, HIPAA is HIPAA whether you’re a conventional medicine like health system that has 46 outpatient clinics in like a little metro area, or you are a one-person solo practice doing functional medicine. So HIPAA, it doesn’t change anything. There are a couple of things. They’ll take into account your income, and how able you are, specifically for the security rule. But for the most part, the privacy rule is applicable across the board, the security rule mostly as well. But for integrative and functional docs, how you protect yourself is, you know, I mentioned earlier, the biggest liability comes from the patient agreement. You know, how you structure your practice, how you’re getting paid. And what I think is the most important is the informed consent, and so I’ll start there. Informed consent, as you all are probably familiar with it, from maybe anesthesiology, or surgery. 

And what I do is I recommend that everybody in the integrative, functional space have every patient at the first appointment go through the informed consent process. And the reason for that is there are, you know, more than any other area that I teach, there are examples of lawsuits that people didn’t get informed consent from a patient, and they ended up getting sued, and in some cases, having million dollar settlements or jury awards. And so, let’s talk about that for a second. So, the informed consent is a conversation that you have with a patient prior to engaging in a protocol, or a plan of action for their health. For most lifestyle medicine providers, it’s gonna be low risk medicine that you’re practicing. 

However, as I mentioned earlier, we are still in the minority of medical providers, and there are a lot of skeptics out there. I mean, don’t look now, but if you on Wikipedia, functional medicine is listed as a pseudoscience. Pretty negative on there. And so, that’s kind of the world we’re living in. So we’re getting more acceptance, but there’s still people, and maybe some of the watchers, your viewers, can attest to this, that have a patient, the patient goes back to their PCP, and then they come back to you and say, “Well, my PCP said that’s not standard of care. So why did you recommend X, Y, Z?” And so you know, having the informed consent’s great, but being able to answer that question is even greater. Right? And so that’s part of what you talk about in the informed consent process. 

Like, “All right, so there are some risks to this. You know, there’s definitely a lot of benefits, but there’s risks too, and you have alternatives. You don’t have to see me, you know, you can continue to do nothing. You can go back to your conventional docs. You can see me, and I’m not here to talk you out of going to conventional docs.” So, that’s a huge one, don’t coerce people, or try to sell them on your services. And so you have that conversation. And then just as important as having the conversation is memorializing it. So, you memorialize it with the informed consent document, and that just kind of recaps what you talked about, and the patient agrees that they had an opportunity to ask you questions, and they fully understand what’s happening, and they also know that they can revoke their consent at any time. 

And so, that’s number one for proving that you had the conversation. And that’s huge, and that comes up a lot for somebody that is wanting care, but their spouse is not a believer in it. Or they’re elderly, and they want the care, they believe in it, but their adult children don’t trust you, right? Or they, especially if somebody is, you know, going through some cognitive decline, and you’re doing some Bredesen protocol, you want to make sure that both that person kinda is there for the conversation, and to the extent that they’re comfortable, either a personal representative, or a spouse, or an adult child of them, are also present for the conversation, because you can open up a can of worms, where you’re treating this person for cognitive decline, you said you’ve had a conversation with them, and they signed it. But then that’s not hard for any attorney to go, “Well, how do we know they had the mental capacity to sign this, or that they understand what you’re talking about?” Right? And so, that’s huge to just to be able to prove it. And so that’s another specific example where you want at least maybe one other person to kind of be present. 

But so, I recommend that for everybody that walks through the practice, whether you’re just giving lifestyle recommendations or not. And then having, you know, a modified version of it for something like chelation, for something like IV infusions, something like hormone treatment, or if you’re going to prescribe ivermectin, something like that. Definitely, you know, that is very controversial at the moment. And the science is kind of, you know, debated, or not conclusive. You know, we’re not even near a consensus. And so I know a lot of people really believe in it, I know a lot of people really don’t. So you want to make sure that you tell that to the patient, and that they signed something that they understand that before you go ahead with that.

Cheng-Huai Ruan, M.D.

Yeah. You know, I kind of advise all the doctors, doesn’t matter what type of doctor they are, to have these systems set up, whether they practice in the traditional practice, or integrative health practice, or anything like that. It’s because after 2020, I think all of us are taking at least some risk. And I think that what you said was have this agreement, and this agreement set up of the things that you do, whether it’s within the scope, or sorry, within the standard guidelines, or maybe you’re going outside the box. I think that the box is no longer defined as of when the pandemic hit. And so I think that in order for best practices, right now, I think we’re in the world where patients are kind of Googling everything, and they really have a choice of who they want to see, so I think a lot of doctors are at risk. 

Now, my wife’s an OBGYN. So, from an OBGYN standpoint, people are shifted, when they’re pregnant, they’re literally shifting between GYN doctors. And pregnant women tend to have different, you know, written down birth plans and stuff like that, and they want to figure out, you know, who’s the right one. And I always hear that, oh, you know, this gynecologist, or this gynecologist didn’t wanna do this on my birth plan, but this one will, and what’s up with that, right? So, I think that we’re in the era where there’s a lot of things that patients will be Googling prior to them seeing you. And it’s all about perception, I think. Even if you’re practicing within the specific guidelines, if they perceive you not to be, then that can create some issues too. 

And whether a lawsuit’s successful or not, it’s always gonna be a lawsuit, I feel like, right? And now, and I’m in Texas, it’s a little bit different, but some other states, you know, the minute that there’s any inquisition, even if you’re not necessarily at fault, it is a lot to go through from a malpractice point of view. You know? So, I think what we’re seeing from here on out is an evolution of, not the way we practice medicine, but the way we communicate with the patients. Because their first information that they gather is gonna be from the internet, and you can’t control what Facebook forum, or what website they get their information from, right? It could be at the New York Post, which is, you know, it’s pretty much a tabloid, right? Or it could be, you know, from the CDC, and you have no idea. So yeah, I think it’s all about setting up these lines of protections. And as you’re talking, I really have to go back into our documentations, and refresh it for the pandemic era. ‘Cause we created it back in 2017, and I’m like, “Okay, I can think of a few things to put in there.” So, I want to thank you for that. 

Scott Rattigan, J.D.

Yeah, absolutely. You touched on a couple of things that I want to address too, you know, in that same light. You know, one OBGYN that will do it one way, and one that refuses to do it the other way, and they’re both within the standard of care, and that’s fine. Right? You know, you can make medical decisions, and even though another doctor, or 9 out of 10 doctors, wouldn’t do that, if you are within your education, training, and experience, and there’s at least a substantial or significant minority kind of in the same camp as you, that’s definitely supported by standard of care. And that’s a prima fascia defense to any kind of malpractice. Prima fascia is a fancy word for kind of “you get the benefit of the doubt,” and that defense is kind of valid, right? And now, the other side can attack it, and pick it apart, so it’s not bulletproof, but that’s some Latin that I picked up in law school. But you add to your point too, is that, you know, until now, and in the insurance model, you know, customer service wasn’t really top of mind for most doctors or practitioners.

Cheng-Huai Ruan, M.D.

It should be.

Scott Rattigan, J.D.

Yeah! It ought to be. But you know, the incentives weren’t in place for it to be a huge priority, right?

Cheng-Huai Ruan, M.D.

Right, right.

Scott Rattigan, J.D.

Now you’re having to go out and sort of market yourself a little bit more, or distinguish, or differentiate yourself, to some degree. And like you said, you have to, you know, keep the customers happy. And that doesn’t mean sacrificing your medical principles or anything like that. But it’s explaining what’s gonna happen, you know, telling them, “This is what we’re gonna do, and this is how we’re gonna do it, and do you have any questions?” And really focusing on the service aspect of it. Because you kind of hinted at it, but lawsuits happen when people are frustrated, disappointed, their expectations aren’t met, and then the emotions start running, and then they’re like, “Well, that was shit.” And then they sue you over what? Like $3,000, and it ends up costing you like, you know, $50,000 or more.

Cheng-Huai Ruan, M.D.

At least.

Scott Rattigan, J.D.

Yeah. And when I was in my litigation days, you know, our firm would charge for an active case. It was close to like $20,000 per month to the client. You know, we had several attorneys working on it, and they’re getting ready and responding to all this stuff. It’s not fun. And it’s not fun, I think you touched on it, it’s not fun emotionally either. So, there’s a lot of emotional time spent, and energetic draining that happens if you’re a litigant in a lawsuit. Even if you win, you don’t win. Everybody loses. Right? The only people that win are the lawyers, right? So. But even then, like, that’s not really a great life, that’s why I ran away from it. And you know, that’s a lot of burnout in litigation. But yeah, I think it’s, you know, managing expectations, keeping expectations, you know, not through the roof, say, “Hey, listen, I’m a doctor. I’m not a miracle worker.” You know, kinda let everybody know that we’re gonna work through this together, and you’re a partner in your own healthcare journey, and kind of reframing the narrative, and their expectation levels around what a doctor is and can be. And then that will go a long way towards reducing any kind of friction down the road.

Cheng-Huai Ruan, M.D.

Yeah, I bet. And I assume that most lawsuits really start with just poor communication practices, right?

Scott Rattigan, J.D.

Absolutely! Doctors, lawyers too, you know, get a lot of lawsuits against them, for just not answering emails is the number one reason why lawyers get sued. But doctors too, like just communicating is gonna remove all sorts of gaps in the story. So, when there’s a gap in the story, the patient thinks you’re doing X, and you haven’t told them otherwise, they’re just gonna run with that story in their head. Like, “Well, they’re just kind of shoving labs down my throat, or shoving supplements down my throat just to make a quick buck.” They don’t know that you don’t really make any money on labs, or, you know, very little money on supplements. So, but if you don’t communicate some of that to them, or that’s really not the best example. But if you’re not communicating, you know, the what, the why, the how, and how you’re supporting them in their journey, they’re gonna fill in the story on their own if you don’t.

Cheng-Huai Ruan, M.D.

Yeah, and we see this all the time, you know? I subscribed to our Texas medical board newsletter of all the doctors under fire and stuff like that, and a lot of them is just kind of really silly, just from a cognitive standpoint, but from a customer service standpoint, it’s like, duh. And I’ll give you some examples. There’s there’s one recently that I saw where a patient was seeing that his doctor didn’t disclose to him that the lab company was supposed to charge their insurance for the labs they’re supposed to do. Which, I mean, it’s almost like a given? But these are the things that really need to be stated. And then, a lot of doctors are like, well, you know, it should have been Quest, or Lab Core, or whichever lab company, you know, that has the responsibility of telling them. But hey, you know, litigation’s litigation. 

No one wins in that. And then there’s other things where it talks about, okay well, you know, “I had a new illness, and my insurance says I’m supposed to cover this whole thing.” And this drives me nuts. My insurance says this whole thing is supposed to be covered, but then we also talk about my left foot pain, which this doctor added on a code, and this wasn’t necessarily communicated with me. So most practices, actually, they ended up like either writing it off, or they ended up telling other patients, “Hey, now there may be things that may not be covered.” Which is probably the right thing to do. But this particular one, you know, sent the patient to collections, and then this whole litigation set up, again. 

So these are things that are like really common out there, that a lot of people are doing. It’s actually the “standard of care” to not care about these things. And I feel like, you know, people turn a blind eye to it. But people are still, there’s still a litigation behind this. And when emotions run high, you don’t want to do the standard of care when it comes to protecting your practice, you want to go well above and beyond anything. ‘Cause you know, listen, I’ve been involved in litigation, and it’s terrible, and it’s terrible, you know? Did I “lose?” No, I wasn’t at fault. It had nothing to do with my practice, it had to do with other things that surround the business of practicing medicine. But you know, a lot of this stuff is frivolous, and you can’t really deal with it unless you have some sort of protection that’s set up. And so that’s why I think that practitioners really need like quality legal services. But how do I know what’s a quality legal service, versus someone else? Like, is there like a Gauge, or a Google review, or something like that?

Scott Rattigan, J.D.

Yeah, good question! I mean, it’s almost like how do you find a good doctor. Right? There’s not that many review services out there that are trustworthy. How do you find a good auto mechanic? Well, you ask your friends and your neighbors, and you know, hopefully they’ve had good experiences. So I think, number one, I always say the best marketing is just being a great provider, and getting great clinical results, because people are gonna be amazed and tell their friends. And so, that’ll be the best marketing you could ever do. And you want someone that kind of understands both the black and white law, the letter of the law. And what we’ve been talking about too, is kind of, all right, we’ll just over-communicate. In your example about the labs, like, just say to the patient, “Hey, take this lab over to Quest. They’re gonna handle the billing directly, so that billing is between Quest and your insurance.”

Cheng-Huai Ruan, M.D.

Right.

Scott Rattigan, J.D.

“It may be covered, it may not be, and I don’t have anything to do with that decision making process.” And then, you know, also just working with the patient too on that point. You know, I’ll get back to how to find a good lawyer, but working with them too and say, “You know, if this lab is too expensive for you, we can negotiate at cash prices, and see if this, if your insurance won’t cover it, try this.” Or, “You know what? That’s kind of a specialty lab. And based on my experience, I can pretty much tell what the results gonna be. And let’s just kind of start that process, but it’ll be a trial and error process.” And, you know, work within your budget, particularly for cash based practices. 

But how to find a good attorney? Yeah. It’s just kind of word of mouth. And so, that’s the best one. And then, you know, testimonials are great. You know, if you use testimonials at your practice, you know, that’s a great way to kind of provide social proof. But I think even third-party word of mouth is better, right? So most people that find me find me from former clients that kind of, the first question on my new customer questionnaire is, “How did you find us?” 99% of the time, it’s some sort of Facebook group, or social media, or a colleague. And so, I think that is how you find somebody good. Or just, you know, I see it every day, I’m in some of these practitioner groups from my former life with Evo Med, and it’s like, “Hey, does anybody know good so-and-so?” Or, “How are you using this EMR?” And so you kind of just go to the group and ask them. Then you see if they will do a free discovery call, you know, and see if they’re gonna fit your situation. And to the extent you know what to ask, ask them pointed questions about your situation. And then sometimes it’s a feeling situation too. Are they gonna communicate well with you, particularly around billing? You brought up two examples on billing that led to lawsuits from patients.

Cheng-Huai Ruan, M.D.

Yes.

Scott Rattigan, J.D.

And I hear over and over again that, you know, “I paid a $5,000 retainer, and then I got to bill 18 months later for another 12, $13,000, and they didn’t say anything.” Right? So, ask them. You know, “What are your billing policies?” You’re the customer in this situation. At Functional Lawyer, you know, it’s very transparent, and you know, I kind of lay it out. It’s all on the website. And if you’re asking me, I’ll be able to tell you what the prices are, and that’s it. I don’t dip into after retainer stuff, it’s pretty clear. And so, you know, asking about their billing policies when you find them, and then asking colleagues about their experience. 

And if you’re talking to a doctor, just say, “Have you ever done this before?” Or, “Have you handled a situation like mine before?” That’s not always the best question, because sometimes they’ll be like, “Oh yeah, absolutely!” Right? But you know, you can gauge the person’s character, or their trustworthiness, based on how they answer certain questions. If they say, “Yeah, we’ve done that hundreds of times.” Okay, great. But if someone says, “You know, I haven’t done it exactly for that particular state in your particular situation, but I have helped lots of other similar cases, where it’s your same license level, and it’s in several states around you, and we can dig into it and figure it out.” And that’s an honest answer, and that’s someone that you can maybe trust. And so do I have a playbook for that? No. But kind of word of mouth, asking questions, and kind of getting a feel for it. And then looking, you know, you have a responsibility too as the consumer to ask questions and interview us, just as much as we’re interviewing you.

Cheng-Huai Ruan, M.D.

Absolutely. Well, Scott, listen, you know, I have like 34 other questions, but I’m really not gonna ask, because we’d be here for like eight hours! Oh, but this has been fantastic, very revealing. It’s really gonna make us go back into our systems and see what we have current, document the process. And then, honestly, I hadn’t thought about the coronavirus situation going on right now, and how it pertains the way we practice medicine. Because you know, we switched from 5% telemedicine to 86% telemedicine in two weeks! That’s how quick we did it. And we actually had to close down, two of our three brick-and-mortars so that we can pivot, and change, and survive. And now we’re thriving, which is good. 

But a lot of our policy procedures really were surrounding, some telemedicine, it’s mostly in person. Now we’re gonna have to take a look back to see exactly where we’re on those things. So, I will thank you very much. So, guys, with the link, there’s a link in the description of Scott’s website, and yeah, go ahead and explore it. And I actually did this a few years ago. There’s actually even more stuff on it now, ’cause I just looked right before we hopped on! It’s a lot more robust. So, thanks for being on, thanks for imparting all your knowledge. I mean, this is such a, not just an important discussion, but it very much needed discussion, and we hope to really like save some people from litigations and lawsuits just by listening to this. So, thank you very much.

Scott Rattigan, J.D.

Yeah! I hope everybody got a lot out of it, and if they had questions, just reach out to me at Functional Lawyer, or just kind of follow me on YouTube, or my social channels, and you’ll get a lot of valuable information that way too as well.

Cheng-Huai Ruan, M.D.

Awesome. Thank you so much.

Scott Rattigan, J.D.

Thank you!