General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1997, Volume 14, No. 1 copyright American Bar Association. All rights reserved.
BY FRANCIS X. MORONEY
Francis X. Moroney is chair of the General Practice, Solo and Small Firm Division's Health Law Committee and is in private practice in Carle Place, New York. He consults to the legal and medical professions and health care institutions on accreditation and other health-related issues.
Sussy: Mr. Moroney's office.
Voice: This is jennifer j. rose. Is he in?
Sussy: One moment.
Frank: Hi, jen.
jennifer: Hi, Frank. I wanted to call about the article we discussed in Sedona.
jennifer: Remember, we were chatting at the Arizona conference on Native American issues...and I asked you to write an article about health law.
Frank: Why, yes. You wanted me to write an article about how lawyers practice health law and they don't even know it.
jennifer: That's right. Keep going, you're doing okay!
Frank: If my memory serves me, we've had three conversations about that article since then.
jennifer: That's right. So, how many more times am I going to have to ask for an article?
Frank: jen, this is it. I'll get on it today.
jennifer: Okay, but what do you intend to write about?
Frank: Well, I thought I'd make a connection to several areas of practice and show how they really involve health law issues. Sort of a tease. First, I'd start with something obvious--like elder law. You know, like living wills, health care proxies, and that sort of thing. I'd explain that anyone who drafts a living will or proxy must comply with state law as to form. But these documents become important to hospitals and nursing homes as well.
jennifer: Can you be more specific?
Frank: Okay. Federal law requires that all patients be asked, at the time of admission to a hospital, if they have advanced directives--living wills or proxies. This information is entered on each patient's chart. If there are none, the family of the patient could be required to make certain decisions "in the best interest of the patient," like signing a Do Not Resuscitate order.
jennifer: So, you're saying general practitioners should be familiar with both federal and state law, not to mention hospital regulations.
Frank: That's right. Now, on the issue of nursing homes, every state has its own standards for admission. They also want to know about advanced directives. Obviously, the economic and financial status of the patient is also important. Simply, nursing homes want to know who will pay.
jennifer: I understand all that. Long-term health insurance, private pay, or medical assistance. I see the health law connection, but it also sounds as though estate planning issues are involved.
Frank: Yes. Payment of health and medical bills is one of the primary reasons lawyers are hired to plan estates. We are asked to help preserve an estate and to ensure that parents or spouses are able to receive proper skilled nursing services in their final days. Lawyers ask questions like, Does your client have the time to transfer assets and still qualify for medical assistance? If not, is the purchase of a long-term health insurance policy feasible? Does state law permit "special needs" trusts for the chronically ill?
jennifer: That seems simple. How about family law?
Frank: Family law practitioners face a host of health law issues. For example, the issue of health insurance should be addressed in a separation agreement or matrimonial action. And it's not merely insurance. Unreimbursed medical expenses, emergency care issues for the noncustodial parent--the list just goes on and on!
A divorced spouse cannot be covered as an insured under a health insurance plan, but is entitled to a COBRA on the insured's policy. But who pays? With the new law on portability, the pressure should be eased for the client who relocates, but the cost of insurance and the policy provisions are important. So insurance coverage issues are front burner--especially with the cost of insurance and health care.
jennifer: That's good. What else should the family law practitioner know about?
Frank: Okay. There is always the issue of parental consent. Take this scenario. A and B are divorced. Under an agreement, A has custody. While visiting B, the minor child takes ill. Who makes the decisions relating to emergency care? Easy, you say--B. But B has to notify A as soon as possible. Each hospital has a policy on medical treatment of minors. What if A and B disagree about the need for the care? What if religious issues are involved? What about withdrawing medical treatment from a comatose child? Remember, as a minor, the child cannot execute a proxy, living will, or other instrument relating to the withholding of treatment. But the separation agreement or stipulation of settlement should deal with these issues.
jennifer: I see. How about litigators?
Frank: No self-respecting "med mal" lawyer would proceed to trial without looking at the internal operation of the medical profession or hospital. The litigator needs to deal with rules of confidentiality, standards of care, and quality assurance issues. These issues relate directly to the delivery of care to a patient suing for malpractice. For example, what if a patient's chart was referred to the risk management office of a hospital? Or what impact would a discipline hearing against a doctor have in the "med mal" lawsuit? Hey, this article will be fun to write.
jennifer: I told you so.
Frank: A good "med mal" practitioner needs to know more about the operation of medical institutions than where the record room is located.
jennifer: What about the business lawyer?
Frank: What do you do if medical professionals want to form a business enterprise? Do you form a partnership, a limited liability company, or a professional corporation? How do you structure the finances? What if a group of doctors wants to contract with a hospital to operate an emergency room? Obviously, business lawyers need to deal with the contractual issues, but they also need to explore the malpractice insurance issues. Also, the regulatory requirements for approval by the appropriate health department must be taken into account.
Business lawyers and general practitioners have to be proficient in administrative law.
jennifer: How's that?
Frank: Licensure, disciplinary proceedings against doctors and nurses--it's all administrative law. What do you do if an minority doctor comes to your office and says she believes she was discriminated against when privileges to practice medicine in a hospital were denied or revoked? Even civil rights lawyers must know the process for a doctor to be privileged and credentialed. Legal judgments will need to be made as to whether to file an appeal under the medical staff bylaws. An appeal may be directed to a state agency. And what if a doctor challenges data forwarded to the National Physicians data bank? What are the procedures? This is all administrative law and regulatory practice.
jennifer: Now I know why you joined the General Practice, Solo and Small Firm Division. What about real estate and estates? I'll wager that there is no connection at all to these areas of the law.
Frank: You're wrong. Have you ever had a claim by social service agencies against an estate for medical assistance benefits? What about advising a client on how they own real estate? Joint ownership may expose property to claims if a spouse signed an admission document agreeing to be responsible for the medical costs of the patient/spouse.
jennifer: Well, when you do get around to writing that article, keep it short. Just give the General Practice, Solo and Small Firm Division members a tease. In fact, why don't you sit right down and do it now. Just put what you told me on paper and send it along.
Frank: Just as soon as we hang up, I'll do it--I promise. Good-bye.
Frank: Sussy, hold all my calls. There's something I need to do...