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ABA Health eSource
 June 2007 Volume 3 Number 10

Chair's Column: The Berlin Health Law Exchange
by Paul R. DeMuro, Latham & Watkins LLP, San Francisco, CA

Paul R. DeMuroYour HLS Governing Council and others from around the world traveled to Berlin over the Memorial Day weekend to participate in the ABA HLS sponsored Berlin Health Law Exchange and to attend our quarterly in-person Council Meetings. Although a big thank you goes out to the many members who traveled without their families or only with part of their families, a much bigger thank you goes out to the families of the attendees who "loaned" the delegates to us for a most productive Exchange and weekend.

I also have to thank Dr. Henning Schneider and Mr. Christoph Engeler from Hamburg, Germany who not only participated in a panel discussion as noted below, but also were instrumental in identifying and inviting the participants on the panel addressing Foreign Investments in Health Care in Germany, and invited many of the leading German healthcare professionals and lawyers to the Exchange.

Our Chair-Elect, Andy Demetriou, noted that he had never been at a meeting where so many attendees took so many different airlines and stopped in so many different cities. At last count, I believe at least the following airlines were used: American, British Airways, United, Lufthansa, Continental, Delta, Air France, KLM, and Swiss Air. Stopovers appeared to be the order of the day, with at least stops in Houston, New York, London, Amsterdam, Paris, Frankfurt, Zurich and Munich. Unfortunately, our Budget Officer, David Hilgers, missed a connection, making it not feasible for him to get to Berlin in time for the meetings. He traveled far, but to nowhere. Thank you, David, for trying.

The Health Law Exchange began on Friday, May 25, 2007, with Dr. Paul Gully as our keynote and luncheon speaker. Dr. Gully is the Senior Advisor to the Assistant Director-General Communicable Diseases, World Health Organization, and is based in Geneva, Switzerland. Dr. Gully is a former Canadian Deputy Health Care Minister who is a physician trained in the U.K. He outlined key provisions of the 2005 International Health Regulations (IHR 2005) and their applicability to all of us who practice healthcare law, whether globally, domestically, or both.

Dr. Gully noted that an interesting aspect of developing international healthcare and intellectual property law has emerged when a country where a virus first occurs demands some form of ownership and/or compensation over a vaccine made from that virus by a developed country. He also noted that the application and effective implementation of the IHR 2005 are key to the ability to attempt to contain the spread of disease throughout the world, including minimizing and/or controlling a pandemic, by imposing certain obligations on member states.

Many of those obligations affect our healthcare clients by virtue of the fact that they are first responders. Various discussions ensued about how many domestic healthcare lawyers have not heard of the IHR 2005, and even those who have may not see the relevance to their practice because they contend that they are not public health lawyers. The exchange among Dr. Gully, others familiar with the importance of the IHR 2005 to domestic lawyers, and the delegates demonstrated the significant relevance of the IHR 2005. Shelley Hubner, a first-year council member from San Francisco, had kindly agreed to summarize Dr. Gully's remarks and their relevance to all of us in a future HLS publication. We hope to see this summary as early as the July eSource along with summaries of the other sessions.

After lunch, Dr. Henning Schneider (one of our Program Co-Chairs) and Christoph Engeler, international healthcare lawyers based in Hamburg, Germany, discussed the privatization of Germany hospitals and nursing homes. They noted how the introduction of DRGs into the German Health Care System has resulted in many changes in the German healthcare landscape. (For those of you who have practiced healthcare law at least since the mid-1980s in the United States, you certainly recall from the introduction of DRGs by our Medicare Program and the huge effect they had on our healthcare system.)

Dr. Schneider and Mr. Engeler's presentation, in part, was a further discussion of Mr. Engeler's discussion of the Germany Sickness (health payment) funds which he presented at our very popular Emerging Issues Conference in Orlando, Florida, earlier this year. We could tell by the questions which U.S. lawyers skipped Mr. Engeler's presentation in Orlando in favor of the Mouse. He will make his slide deck from that conference also available to these attendees.

Michael E. Clark, our Publications Chair from Houston, Texas, graciously agreed to summarize the panel discussion on the Privatization of German Hospitals and Nursing Homes. The panel had a lively discussion which was supplemented by much information by the delegates, and for some feelings of déja vous, given the DRGs.

The final panel included a discussion of Foreign Investments in Health Care in Germany. The presenters included Stephan Mertens, Director, GE Healthcare Financial Services (one of the leading healthcare lenders in the world), Frankfurt, Germany; Dr. Alexander Kirstein, CFO University Hospital (one of the leading university hospitals in Europe), Hamburg, Germany; and Dr. Jan-Frederick Belling, Director and Head of Healthcare at M.M. Warburg (one of the oldest investment banks and financial advisors in Germany), Hamburg, Germany.

Some common themes emerged from the panel discussions. Much of the German healthcare system is in the midst of privatization and change, and it is developing a voracious appetite for capital investment. Mr. Mertens and Dr. Belling underscored this theme in their very timely remarks, which also included a discussion of what they and their companies are doing to assist in the transformation of the market. Dr. Kirstein's remarks from the perspective of a Germany University Hospital CFO certainly challenged the delegates to look at comparisons in Germany and U.S. and other healthcare systems for potential solutions to emerging health payment problems. Bill Horton, the Chair of our HLS Programs Committee, from Birmingham, Alabama, volunteered to summarize this session for all of us, and we are most grateful for Bill's agreeing to do so.

Perhaps the most productive and entertaining session was the hour discussion following all of the panels, where each of the delegates also participated. A most interesting discussion of not only comparative law issues with respect to the U.S. and Germany and the critical healthcare legal issues which had been addressed earlier in the day ensued, but also a comparison with the Canadian and the U.K. healthcare systems, the relevance of public health issues in the context of practicing healthcare law domestically and internationally, the emergence of telemedicine issues, the trend of medical tourism, integrated delivery systems, developments in healthcare insurance and domestic healthcare regulations.

Perhaps one of the more interesting moments occurred when Shelley Hubner and Hal Katz, our Interest Group Chair from Austin, Texas, wondered about potential physician ownership in emerging healthcare facilities in Germany, and how interesting it would be to practice in a world without the Medicare fraud and abuse, anti-kickback and Stark self-referral laws. Others privately wondered whether the loan of Jim Sheehan from the Philadelphia U.S. Attorney's office to New York State to serve as the First Medicaid Inspector General for that state (Congratulations, Jim!), would result in a later loan of Jim to the German Government.

The questions and interaction were equally lively from the Germans and other non-U.S. healthcare attendees. Domenic Crolla, a healthcare lawyer from Ottawa, Canada, currently the Chair of the Medicine and the Law Committee of the International Bar Association, based in London, and one of the leading authorities on telemedicine contributed much to the discussion. He and Dr. Gully also embarked on a brief discussion of the Canadian Health Care System and Canadian healthcare issues.

One observation which was clear from the Exchange is that no country appears to have the perfect system and we can learn much from each other. The discussions did not end with the final interactive session from 5 p.m. to 6 p.m., which I had the privilege of moderating. They continued on into the cocktail hour and with an exchange of many business cards. Others seemed to enjoy the discussion so much and the unseasonably warm Berlin evening that they took a walk to "Checkpoint Charlie," which was in the area of Berlin previously known as the American Sector. (This author returned for the evening having already had Sheila and David Johnson, a Council member from Albuquerque, New Mexico, who was born in Germany, give me this tour.) Some of these participants were reported to have returned to the hotel bar thereafter for further discussion and libation.

Your HLS Counsel was hard at work the next morning, discussing the importance of the ABA Breast Cancer Task Force led by Linda Baumann, our Council Secretary from Washington, D.C. We discussed two proposals that our delegates, Howard Wall of Nashville, Tennessee and Greg Pemberton of Indianapolis, Indiana, will be presenting to the House of Delegates of the ABA in August, 2007. Proposals which the HLS is co-sponsoring or wanted to discuss were also topics of the meeting. After a Saturday morning of work, most headed out for a guided tour of Berlin which included visits to the Holocaust Memorial, government buildings, the Pergamon Museum, and three stops for food (either the Germans like to eat, or they thought we did).

At the Sunday morning Council meeting, we had an in-depth discussion of the budget for the 2007 to 2008 Bar year and the continuing work which needs to be done on it to ensure the highest priority for services to our members. The Chair-Elect's Committee on Organization and Structure's report was discussed and how it ought to be implemented this coming Bar Year. By late morning, the scheduled meetings had concluded. Some raced to get trains or planes, others stayed on for a day or so, and some even went on holiday.

We cannot thank our staff members enough for all their hard work in putting together the 2007 Berlin Health Law Exchange and Spring Governing Council Meetings. Jill Pena provided great coordination and direction, particularly with respect to speaker and delegate invitations and follow-up. Sena Leach deserves most of the credit for ensuring that the meetings came off seamlessly, coordinating everything from Chicago. (The budget did not allow a site trip beforehand). Thank you Sena. Adam Bielawski, once again, provided the technical know-how for it all and penned the minutes. He also kept reminding us that his family was from Poland, not all that far from Berlin. (I did not know whether he was seeking to have a Council meeting in Warsaw or not.) A big thank you also goes to Adam. And we cannot forget Abbey Palagi, who held down the fort in Chicago and was available to assist as needed. Thank you, Abbey.

Finally, I need to take this opportunity to thank the HLS Governing Council for its overall support for taking what seemed at the time quite a bold step to hold such an International Exchange. It has been a highlight for me this year, along with our further commitment to diversity. Delegates and guests enjoyed themselves, contributed to our knowledge base, met new friends, visited a truly historical place, did the business of the Council, and were present for what I believe was the biggest football game (the finals) in Germany of the year. (I think only Hal Katz attended the game in person, but many of us watched on one of the very big outdoor screens around town and many of us got to see the winning team revel as they walked up the red carpet at our hotel in their celebration.)

Although Michael Clark's wife and children were present, only his son proudly displayed the 20 autographs he obtained on a flag for the 1.FCN ( Nuremberg) football team. Linda Baumann's son celebrated his 20th birthday in Berlin, most pleased that Germany does not have a drinking age of 21 years old. Linda's significant other Richard's cigars contributed to the "atmosphere" in the bar. There seemed to be events for all. Bob Hubner, Shelley's husband, fortunately served as the level head for all others and was a delight. I think our law student representative, Katie Rose Fink, whose sister, Dorothy, is a newly minted MD, said she had made the correct decision to go to medical school after participating in the conference. I hope Katie is pleased that she made the decision to become a healthcare lawyer.

I was fortunate enough to have my 14 year old daughter, Melissa, travel with me. It was wonderful to have the company and a companion for many of the social events. Starting in September 2007, I will be seeing less of her as she matriculates at the St. Paul's School in Concord, New Hampshire. I am sure that she, as we all, will have fond memories of this most noteworthy event.

Thoughts, concerns, observations … My email address is paul.demuro@lw.com.

My best regards and thanks for reading.

Paul R. DeMuro