No Means No (Maybe)

bcbs lawsuitBy: Jeff Cohen

Lawyers have the reputation for being “deal killers.”  Clients get frustrated when lawyers say the client’s proposal violates a law or just can’t be done in a way that makes any business sense.  Part of that is inherent in the work of being an attorney, since we’re very cautious and make a living protecting our clients.  Plus, even though good and experienced lawyers will do their best to help clients work within the confines of applicable law, at the end of the day, saying “no” is often the lower risk option.  But the “Road to No” can be confusing and frustrating to clients; and clients need help finding the right attorney for them.

In the book “Outliers,” author Malcolm Gladwell says it takes roughly 10,000 hours to achieve mastery in a field.  With lawyers, you have to ask “Are we talking about billable hours?”  If that’s the case, mastery could be achieved in a month!  I’m kidding.  Still, we all know the dirty little secret about becoming good at something:  lots of hard work over many years.  No short cut.  No magic.  Or as Samuel Goldwyn said “The harder I work, the luckier I get.”

When it comes to dynamic regulatory areas of law, like healthcare law, legal analysis is unique.  The laws change and get interpreted all the time.  What once seemed clear one day, seems less clear another.   What regulators ignored in the past becomes a priority today, with all sorts of clarifying regulation and activity.  That’s the nature of many areas of the law which are so heavily influenced by public policy, especially where regulatory enforcement is a stated priority, as it is in healthcare. 

Given these unique pressures, lawyers who routinely work in healthcare law develop over time a unique ability to analyze options and risks.  Their analysis is not so “black and white” because the nature of the regulations they deal with are constantly being developed, changed, interpreted and reinterpreted.  They may spend more time helping clients navigate in “the grey zone” than other lawyers, which goes against the nature of being a lawyer itself, avoiding risk!  The greater depth of experience over longer time serves clients well because these attorneys also bring an appreciation of trends and cycles to the table.  The net effect is that the experienced healthcare lawyer becomes not only good at identifying the applicable law and regulators’ interpretations of the law, but also good at identifying options and the risks associated with each option.  They are able to focus in on a particular provision or concept, apply it within a broad context and then analyze the client’s situation against the backdrop of the narrow issues and the broader ones.  The response of the experienced healthcare lawyer is not as often “You can’t do that,” but rather “Let me help you identify what you can do and what the risks of each option are.”

So what should the healthcare client look for when hiring a lawyer that involves anything pertaining to healthcare or healthcare business?

1. Experience. Clients ought to ask things like:

a. How many years have you spent practicing healthcare law?

b. What sort of clients do you represent?

c. How much of your time in the past [year, 5 years] have you devoted to advising healthcare clients about healthcare law matters specifically?

d. How many times in the past [year, 5 years] have you advised clients about the very matter I am considering hiring you to help me with?

e. Are you Board Certified by the Florida Bar as a specialist in healthcare law?

2. Honesty. The prospective client should ask “If you do not feel 100% proficient with a matter concerning which I have a question, would you refer me to someone who has that experience or will you instead just try to figure that out yourself?”

3. Clarity. The prospective client should find out how the lawyer charges.  Hourly fees are just one measure.  At the end of the day, the client should ask how much it will cost (or within a certain range of fees) for the client to get what the client needs.  Additionally, the prospective client ought to ask to be kept informed (and asked to approve) if there is a need to do anything that would result in charges being greater than anticipated.

In fairness, hiring a lawyer is more complex that it may seem reading this.  Experience is essential, but it’s not everything.  What’s the use in engaging a really experienced lawyer who won’t return your phone call or one you just don’t personally like?  And clients need to understand that experience does not mean experienced lawyers understand the same things the same way.  Not at all!  The best healthcare lawyers routinely disagree about what laws mean and how they apply to different scenarios.  But they all have the depth of knowledge and years under their belt to both understand complexity and apply it without jumping in a knee jerk fashion to “no.”

The practice of law is not full of generalists.  It’s full of specialists, much in the same way medicine is.  Though a licensed physician can legally perform knee surgery as readily as he or she can perform cataract surgery, a kidney specialist would be a fool to do either.  And a patient not doing the leg work to know the difference is foolish for not doing so.


One thought on “No Means No (Maybe)

  1. This is particularly true in the substance use disorder (SUD) treatment continuum from Detox to recovery residence and every stage in between. Failure to hire appropriate legal counsel to guide and navigate through regulatory, legal and ethical challenges is more than foolhardy. It amounts to fiscal negligence. Protect your investments of time, energy and financial resources by securing guidance from reputable experts who operate in this space daily and are intimately familiar with the ever evolving legal, ethical and regulatory landscape.

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