As practices grow and become more intimately involved in patients’ complete health care — including regimens of sleep, nutrition, lifestyle, and even wearables — there is more room for lapses, errors or disagreements that pose questions suitable for lawyers.
Effective legal counsel has become a critical aspect of the modern medical practice. As practices grow and become more intimately involved in patients’ complete health care — including regimens of sleep, nutrition, lifestyle, and even wearables — there is more room for lapses, errors or disagreements that pose questions suitable for lawyers.
“Similarly, as the patient population becomes more autonomous and well informed, patients have legal questions for their medical practices,” says Benjamin Caplan, M.D., a family medicine physician and chief medical officer of CED Clinic in Chestnut Hill, Massachusetts. “As important as such queries are, there is precious little time left in their busy schedules for medical providers to distract themselves away from patient care.”
In addition to a doctor’s numerous clinical responsibilities, most medical practices are entering the digital data age, in which patient information holds potential value. As intellectual property, that value must be protected by appropriate legal counsel.
In the post-pandemic era, more than ever, medical practices are overwhelmed. “Inevitably, patient care comes with risks and benefits to both providers and patients,” Caplan says. “Both parties strive toward effective, open communication, and most often everyone hopes to avoid disagreements or offenses that must be resolved in the court system, or with lawyers.”
But all practices need attorneys. Consequently, such lawyers must be able to deftly navigate the complexities of relevant law while wrangling with the many players involved in most modern practices.
“In days long past, a medical provider was a single entity, and there were more simple communication channels,” Caplan says. Now, with nonphysician providers (nurse practitioners, physician assistants), insurance companies, outsourced billing, scheduling, administration, call center staff, and even complex ownership roles, legal entanglements can be increasingly convoluted.
“These intricacies require knowledge and understanding, and its effective navigation demands considerable billable hours,” Caplan says. “All of these point to a huge advantage to lawyers who are experienced, knowledgeable or at least willing to work with ever less lucrative medical practices to support their needs in a financially sustainable manner.”
Attorneys’ Knowledge, Reputation Are Selling Points
When it comes to selecting counsel, a lawyer’s knowledge and reputation are of paramount importance to most physician practices. Often a practice has several attorneys; each has a specialty, be it contracts, audits or handling malpractice complaints.
When searching for a contract lawyer, Jordan Grumet, MD, an internist in Northbrook, Illinois, had a checklist. It included someone adept at explaining and translating legal jargon into medical, who was free of conflict and familiar with the laws of the area in which he worked. For audits or disagreements with insurance companies, Grumet looked for a lawyer with experience with Medicare or the specific company, as well as a risk-mitigation mindset. For malpractice disputes, it was important to find a tenacious, experienced deal-maker or breaker.
Rudolf Probst, MD, who specializes in internal medicine and surgery and works with Audiology Research, notes that when choosing an attorney, a practice needs to find someone who is trustworthy, has an office nearby, does not waver under pressure and has medical understanding.
Lawyers with affordable rates who provide thoughtful, attentive services beyond assuaging concerns and putting out fires also become invaluable to a medical practice client.
“Having a team of support on the legal team, where costs of research and education can be leveraged across less costly team members, is a valuable offering,” Caplan says. “Knowledge of the law, of course, is priority No. 1, but being able to defuse tension, communicate effectively with clients and patients, and ideally corrected broken or ineffective communication so as to avoid legal entanglements is an invaluable skill set too.”
Most medical practices communicate with and recommend legal teams that have proven effective. There are no free trial periods with lawyers, so an effective track record is important. Because an open, honest relationship is imperative, the practice and individuals dealing with the attorney must feel comfortable reaching out without hesitation.
Lawyers Offer Their Insights
Christopher Ryan, counsel and health care litigation task force co-chair at Dickinson Wright in Ann Arbor, Michigan, agrees that medical practices should look for lawyers who regularly deal with health care matters and clients.
“Health care clients are required to abide by numerous laws and regulations unique to the health care industry, and therefore need to take into account many issues that other businesses may not need to consider,” he says. “A lawyer with experience in the health care sector can help clients identify issues that other attorneys may miss.”
It is critical for the lawyer to understand the goals of the client. Sometimes the goal may be obvious, but other times it is less so.
“Many legal issues can be addressed in a variety of different ways, and oftentimes there is no ‘one’ right answer,” Ryan says. “Understanding the goals of the client will help the attorney provide relevant and helpful advice designed to meet the client’s objectives.”
Lana Ros, a partner in Pashman Stein Walder Hayden in Purchase, New York, notes that because health care is highly regulated with many complex laws and regulations, it is crucial that the attorney be well versed in health care law in the state in which the medical practice is located. Additionally, because a medical practice is a business with employees, the attorney or their firm should have knowledge and experience in employment and business law.
“Having expertise in these areas would make for a well-versed lawyer who is able to advise on day-to-day operations, as well as handle the majority of the issues and transactions associated with medical practices,” Ros says. “Aside from knowledge and experience, the practice should take into account their comfort level with the attorney. For the relationship to be beneficial to the practice, the practice must feel comfortable to be open and honest with the attorney.”
An attorney familiar with the operations is in a better position to provide advice that is applicable and tailored for the practice. “Each practice has its own personality, and one of the benefits of having an attorney familiar with the inner workings of the practice and its people is that the attorney can provide counsel that is relevant to the practice versus just generic advice,” Ros says. “Additionally, it is generally less time-consuming to seek guidance from an attorney who has a working knowledge of the practice because they are familiar with the structure of the practice and their operations, and the practice does not need to spend significant time on educating the attorney.”
For a relationship to work, the practice must feel comfortable with the attorney. If there is friction in reaching out to get the attorney involved in a matter or to seek counsel, then the relationship is not working.
“One of the benefits of having an attorney is to allow the practice the ability to be proactive on the legal front, and if the practice is resistant to seeking such guidance, that is counterproductive,” Ros says. “The attorney must also be professional and respectful of everyone at the practice.”
If practices get the sense that their lawyer may lack knowledge in a certain area or suspect the lawyer does not understand the client’s goals, it may be time to consider alternate counsel, or at least obtain a second opinion.