Establish ground rules with your legal counsel

Expectations are key to having a good working relationship with legal counsel, says Pamela L. Popp, MA, JD, FASHRM, CPHRM, vice president for health care practice with McQueary Henry in Dallas, which provides insurance products and risk management services. Popp also is the president-elect of the American Society for Healthcare Risk Management. "Risk managers spend a lot of time teaching providers how to set realistic patient expectations," she notes. "The same thing applies to working with counsel. Even it’s been a 10-year relationship, you should sit down and discuss what you need to do for each other."

Better communication will help you get the most out of your relationship with counsel, Popp says. With a good rapport, counsel will be able to help you in many situations other than when you have to call with notification that a lawsuit has been filed. The good relationship also will make it more likely that the attorney will be willing to speak to you informally — and at no charge — when you have a quick question or just want to keep him or her apprised of some development, Popp says.

Remember who’s paying for service

A friendly relationship also will make the risk manager more likely to call. "A lot of risk managers are not comfortable making those phone calls to just ask for advice or to let counsel know that you’ve decided to address a problem in a particular way," she says. "Being very cost-oriented, the risk manager might expect to be charged for that even though you haven’t discussed it. And there can be a lot of intimidation, particularly if your outside counsel plays golf with the hospital CEO. They don’t feel like they are on equal footing."

Don’t be intimidated by the fact that the person on the other end of the phone is a lawyer, if you’re not. Remember that you are the consumer and can demand quality service, she says. "Apply the same standards that you would to buying any other service," Popp advises. "If you’re not satisfied with the work that’s being done, the communication that’s coming your way, you should speak up even if your hospital has worked with this counsel for years."

Establishing ground rules and expectations up front is key to avoiding conflicts, but better communication also can help you get more for your dollar.

Popp notes that malpractice defense attorneys have been hit hard by recent economic downturns and are looking for ways to be more value-added to their clients. So the risk manager is in a position to ask for additional services without being charged for every minute of the lawyer’s time. "Don’t by shy about asking," she says. "Particularly if it’s a law firm with a lot of associates, they may appreciate the opportunity to introduce their associates into the mix."

Of course, you probably don’t want an associate handling your complex malpractice case. But by the same token, you shouldn’t have a partner handling routine matters that are well within an associate’s abilities. "You’re better off setting down with them up front and set these expectations. You’re going to pay top money for a lead lawyer sometimes, but you should make clear that associates and paralegals are involved in appropriate ways for the daily work," she says.

Inservices often offered free

Popp notes that outside counsel often will provide in-house education for clinicians and staff on topics such as depositions and what it is like to be sued — but you usually have to ask. In a previous position with Tenet Healthcare, Popp says the company lawyers were required twice a year to provide inservices to the hospitals they worked with.

"We found that it tremendously strengthened the relationship between the risk manager and the defense counsel because they were there on a proactive basis," she says. "It also made defending cases easier because the providers and staff knew these people already and they weren’t strangers when the time came for a deposition."

When dealing with more than one law firm for outside counsel, Popp urges risk managers to know them well enough to distinguish between their strengths and weaknesses, as well as their particular interests. Some firms, and individual attorneys, will be better negotiators and others will be better at trial. It also is common for some to be more interested in particular fields, such as cases involving the emergency department, than others.

A good relationship also should help clarify when the attorney is needed, and when the risk manager can handle the issue alone. "Particularly when you’re talking about trying to develop a nonpunitive environment and having proactive conversations with patients, the risk manager should be comfortable with knowing when to involve outside counsel," she says. "Think about utilizing counsel in a way that is much more expansive than just the person you send your malpractice cases to."

A good way to outline such expectations by preparing a document called "Defense Counsel Guidelines." The law firm may offer such a document that you can alter as necessary, but Popp says the best guidelines are not overly specific. The goal should be to specify general expectations without trying to define every possible situation. That only drives the attorneys crazy as they try to comply, she says. "If you do that up front, you can avoid a lot of animosity that occurs when you get the bills," she says.

The alternative is to just wait and see what the law firm bills for and then hire someone else to perform a bill audit to determine what is reasonable and customary. Such audits are becoming more common, Popp says, but they can wreak havoc on your relationship with counsel.

Risk managers also should ask for an estimate of total charges when first discussing the case or problem with counsel, Popp says. While you cannot expect an exact accounting up front, the law firm should be able to give a ballpark figure for what your total charges will be. "Five years ago, you could not find defense counsel willing to give you a number. But a lot of carriers and self-insurance programs have started demanding it, and individual risk managers can, too."

Be careful not to expect too much from the estimate. Popp says it is reasonable to expect that counsel can tell you a case is not overly complicated, is likely to settle before trial, and similar cases have incurred charges of $25,000. Then as work progresses, counsel can keep you abreast of whether the case is still on track for that expected charge or not.

At Tenet, counsel was held to a 10% variance. That limit wasn’t really enforced in any way, but it served as a prompt for communication between counsel and risk manager. When the budget started going more than 10% over what was projected, counsel was expected to pick up the phone and update the risk manager.

"The number they give you up front is more of a talking point than anything else," she says. "They can estimate up front, and then six months later they know for sure whether they have to go to Europe for a deposition. You want a relationship that makes it automatic for them to call you and update you when they know."

Aside from talking about the cost of legal counsel, the relationship should ensure that both parties receive all the information necessary to work efficiently and produce the best outcome. Popp has one immediate word of warning: Be careful when using e-mail.

E-mail has become so common that risk managers may be tempted to use it for communicating with counsel about legal matters, but Popp says the confidentiality risk is too great. Restrict e-mail use to mundane matters such as scheduling a meeting or passing on the name of an expert, she says. Don’t use it to provide confidential information like answers to interrogatories or a doctor’s licensure history.

Popp also reminds risk managers that they have to be available to counsel when necessary. When establishing a relationship with counsel, or meeting with long-term counsel to improve communication, she suggests going over some of the practical aspects of how to reach each other and exchange information.

Does the attorney want to come in and look over the records before you copy them, just to speed things up? Do you want records sent by courier or is it easier to have someone from the law firm stop by? What about the best times to reach the risk manager by phone? Should the attorney leave a message or have the risk manager paged?

Standardizing information also is a good way to improve communications. For instance, you can provide updates each year or twice a year so that counsel does not have to ask for routine information for each case, Popp says. One example would the new insurance policy number. "Send it to counsel as soon as you have the number at renewal," she says. "Be proactive a little bit and you can avoid a lot of the same questions over and over."