Choose Outside Counsel Carefully; Avoid Common Mistakes
Risk managers may be involved in helping choose outside counsel for the hospital or health system. There are many factors to consider before making the right choice.
- The client and counsel should set clear expectations about fees, response times, and other issues.
- Either a large firm or a small firm could work well.
- The attorney or law firm should have adequate experience in relevant areas of healthcare law.
When risk managers are involved in selecting outside counsel for the hospital or health system, the task can seem daunting. Or, it can seem deceptively simple because every lawyer in town wants the business.
Choosing the right counsel involves considering a multitude of factors, including fees, availability, experience, size of the firm, and even whether it seems like a good fit culturally.
When choosing outside counsel, there is a myth that bigger is better, says Edward T. Waters, JD, managing partner with Feldesman Tucker Leifer Fidell in Washington, DC.
“That is just not true. There are many boutique firms like ours with many experts on the arcana of Medicare, Medicaid, and other federal healthcare programs such as federally qualified health centers, Ryan White HIV/AIDS Program, and the recent array of opioid funding,” he says. “What you get with a boutique is an expert who will pay attention to your problem, and not heavily staff the matter with the attendant high cost.”
Finding an expert in your subject matter also can be problematic, Waters says. The American healthcare system is extraordinarily complex, and lawyers, like physicians, specialize. That means risk managers must take the time to understand the firm’s depth of knowledge on particular issues, he says.
“Also consider: is the attorney or firm responsive? Are they problem-solvers? Do they make sense? Can they communicate their advice in a clear and understandable way? Do you see working closely with this attorney or attorneys as a positive or a negative?,” Waters says. “People, organizations, hospitals come to a lawyer for leadership, and they need help navigating through their issue or issues.”
Clear, understandable analysis and proposed solutions is key, as is working together to solve the problem, Waters says.
“If the attorney isn’t clear, is hard to work with, doesn’t keep you up to date, or fails to respond to requests in a timely way, it is time to find a new lawyer,” he says. (See the story in this issue for a list of factors to consider in choosing outside counsel.)
It is important to choose an experienced lawyer with demonstrated subject matter expertise, and a reputation and presence in his or her field, says Wendi Campbell Rogaliner, JD, partner with Bradley Arant Boult Cummings in Dallas. However, it also is important to dig a little deeper, and to interview potential candidates to make an informed choice, she says.
Additional factors to consider in the interview process include the ability of the attorney’s law firm to staff the matter appropriately. For example, a solo lawyer with undeniable expertise and an impeccable reputation might not be able to efficiently staff a large-scale project, she explains. Appropriate staffing drives efficiency and fees. Healthcare organizations do not want to pay partner-level rates for associate and/or paralegal work, she adds.
Other topics for discussion in the interview should include the lawyer’s ability to create, communicate, and justify reasonable budgets and timelines, Campbell Rogaliner says.
Another important factor is the lawyer’s responsiveness, she says. How often does he or she communicate with clients, and what is their personal policy on response time for client phone calls and emails?
“The lawyer’s general demeanor and ability to be collaborative are important considerations, regardless of the task you’re hiring the lawyer to handle,” Campbell Rogaliner says. “An attorney can be a zealous advocate, firm and aggressive when necessary in support of your position, but at the end of the day, he or she should also be personable, responsive to your organization’s culture, and able to collaborate with you as an external member of your team, to ensure that your organization’s goals and priorities dictate the way a matter is handled.”
State Laws May Apply
Be aware of any particular state statutes or regulations that require special expertise, says Janice Merrill, JD, shareholder with Marshall Dennehey in Orlando. For instance, Florida requires statutory prerequisites for bringing a claim for medical negligence. Other states use similar statutes.
“I can’t emphasize enough how important it is to have someone who actually has experience in handling these cases. Just a generic defense attorney is not going to be enough,” she says.
Merrill recalls a case transferred to her after the long-term care facility defendant first went to another attorney because they were in the same religious community. The attorney made multiple errors in handling the case before the defendant realized it needed someone more experienced in that field.
“Don’t hire someone because they were recommended by a friend or family member, or because they handled a premises case for you,” she says. “Look for a firm that actually tries cases. There are a lot of firms that are good at charging you money to work up cases, and then caving in settlement before trial. If you have certain cases that you’re targeting for trial, you want someone with credibility in going to trial so the plaintiff knows that in negotiations.”
It is important to determine the scope of what you are looking for this counsel to do, notes Carol Michel, JD, partner with Weinberg Wheeler Hudgins Gunn & Dial in Atlanta. Does the hospital want this attorney or firm to handle medical malpractice, general negligence, corporate negligence, or some combination of those?
Further, look for counsel that is experienced with defending particular types of healthcare organizations, Michel says. The specific issues and concerns will be different for hospitals, outpatient centers, or long-term care facilities.
“You also need to choose someone who fits your needs subjectively. You want someone you are comfortable talking to, someone who communicates in a style that works for you, and be part of a team approach,” she says.
Not Just Med/Mal
Remember that healthcare expertise is useful in legal matters outside of medical malpractice, says Zachary Rothenberg, JD, partner with Nelson Hardiman in Los Angeles. An employment issue may seem like it is the same no matter who the employer is, but that often is not the case, he says.
“You might think any employment litigator could handle it, but there are going to be opportunities along the way for an experienced healthcare lawyer to help their client,” Rothenberg says. “You want someone who knows the industry, the regulations that may have some influence on the case. Those may not be apparent to you or to an employment lawyer who doesn’t know your particular field.”
Good healthcare counsel will have a deep enough understanding of applicable law to provide useful guidance, says Mark R. Ustin, JD, partner with Farrell Fritz in Albany, NY. That is more than just understanding what the law says, he explains.
“There are lots of people who can read the applicable statutes and regulations and tell you what they say, but you want someone who has their finger on the pulse of how the regulators think,” Ustin says. “That narrows down the pool a lot. You will find many attorneys who have a fine understanding of what the law says but not that many who can go a step further and help you understand what means for you, and where those laws and regulations might be headed in the future.”
- Janice Merrill, JD, Shareholder, Marshall Dennehey, Orlando, FL. Phone: (407) 420-4411. Email: [email protected].
- Carol Michel, JD, Partner, Weinberg Wheeler Hudgins Gunn & Dial, Atlanta. Phone: (404) 832-9510. Email: [email protected].
- Wendi Campbell Rogaliner, JD, Partner, Bradley Arant Boult Cummings, Dallas. Phone: (214) 257-9841. Email: [email protected].
- Zachary Rothenberg, JD, Partner, Nelson Hardiman, Los Angeles. Phone: (310) 203-2800. Email: [email protected].
- Mark R. Ustin, JD, Partner, Farrell Fritz, Albany, NY. Phone: (518) 313-1403. Email: [email protected].
- Edward T. Waters, JD, Managing Partner, Feldesman Tucker Leifer Fidell, Washington, DC. Phone: (202) 466-8960. Email: [email protected].
When risk managers are involved in selecting outside counsel for the hospital or health system, the task can seem daunting. Choosing the right counsel involves considering a multitude of factors, including fees, availability, experience, size of the firm, and even whether it seems like a good fit culturally.
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