ABA Health eSource
 December 2006 Volume 3 Number 4

Chair's Column: What Is a Healthcare Lawyer Anyway?
by Paul R. DeMuro, Latham & Watkins LLP, San Francisco, CA

Paul R. DeMuroWhen I entered law school in 1976, I thought I would become a corporate lawyer working for a large oil and gas company. By the time I was close to graduation in 1979, it became clear to me that either the large oil companies in Texas were not hiring lawyers straight out of law school that year or they were not hiring me. As a result, I set out to practice law in Baltimore with what is now the Ober Kaler firm, having no clue as to what area of law I might practice in, but having an inclination towards transactional work.

After a number of months of general corporate work, I figured that I would try something else, and litigation became the order of the day. I soon recognized a pattern, that what I liked doing the most was legal work for healthcare clients. But what were "healthcare" clients. I received my explanation from my good friend and mentor, Leonard Homer who is now semi-retired from the Ober Kaler firm (which seems to mean if it is a big enough project for a big enough client, he will work on the matter), now shuttles between his homes in Paris, Key West and Baltimore ... now that's a career in health law!!! Leonard said, "You're in the Health Law Department and you have a career in health law." I was not sure what that meant, and it has probably taken me a good part of the last over 27 years trying to figure that out.

In 1979, if you mentioned to the general populace or most other lawyers that you were a healthcare lawyer, most would assume that you were a medical malpractice lawyer, and while certainly medical malpractice lawyers are health care lawyers, but today health law encompasses much more than that.

The ABA Health Law Section did not exist when I joined the ABA in 1980. There was merely the Health Law Forum. This was 17 years or so before we became a Section. To be a true healthcare lawyer, Leonard told me I also should join the American Academy of Hospital Attorneys and the National Healthcare Lawyers Association, both predecessors to the American Health Lawyers Association (AHLA). My card number for the AHLA is 001294. I am afraid that may mean there are now about 90% of the membership who joined after me.

In the 1970s, being a healthcare lawyer often meant doing whatever one needed to do for healthcare clients, whether they be hospitals, physicians, health plans, pharmaceutical or laboratory companies, SNFs, home health agencies, etc. Although reimbursement was and is still a specialty of mine, we addressed consent issues, drafted contracts, and worked on joint ventures, Certificate of Need matters and litigation.

The hospital industry was a cottage industry of sorts. Most hospitals were stand-alone facilities, not part of systems, and most physicians practiced in one-sees and two-sees. The biotech industry was just emerging and the medical device industry was very small in comparison to what it is today.

And then all of a sudden it appeared as if this healthcare law thing really took off. Ober Kaler was one of only a small number of firms that dedicated larger resources to healthcare or fancied itself as healthcare law firm. A few other such firms were Wood Lucksinger, which was based in Texas; McDermott Will and Emery, based in Chicago; Weissburg and Aronson and Memel Jacobs, based in LA; and Powers Pyle in D.C. (I am sure I have left one of these firms out, and I will immediately be reminded of this by email). It seemed for a time in the early 1980s that most healthcare lawyers one met got their start in one of these firms. There are some conferences that when some of us would get together, we realized the majority of us hoisting a cocktail started at one of these firms.

We older (or should I say more experienced healthcare lawyers) have practices which have evolved significantly, based on the needs of our clients and the growth of government involvement in healthcare. In the early 1980s, there may have only been a mention of the Medicare and Medicaid fraud and abuse laws in a footnote to an opinion letter. Now the government seems to have spawned an entire industry: criminal and civil healthcare litigation, structuring and restructuring of healthcare business transactions, healthcare regulatory advice, etc. It was not until the early 1990s that I even heard of the term Compliance Officer. Now I am a certified member of the Health Care Compliance Association, which has thousands of members and is growing by leaps and bounds. Some healthcare lawyers specialize in fraud and abuse and others in compliance.

Most of the hospitals in the U.S. did not seem to have in-house counsel 25 years ago. They were small businesses. As we became Merger & Acquisition lawyers in the 1980s, putting together the predecessors to many of the health systems that exist today, their size increased and in-house counsel started to make more sense as a business decision for hospitals. As a result, many more of our colleagues are in-house counsel, often doing exactly that they were doing before, but for one client. The percentage of in-house counsel at conferences certainly seems to have gone up.

A career in government in healthcare service (or at least a stint) seems to be more popular today also. At our Washington Healthcare Summit, Lew Morris made his pitch to the audience about considering a career with the Office of the Inspector General. I was sitting next to a young lawyer who asked me if he was serious. I believe I said you bet he is, and I introduced them at the cocktail party.

My first experience with managed care was in 1982 after I moved to California. I was asked to review an HMO contract for a hospital. If I recall, it was the first time the hospital was going to provide a voluntary discount from charges ... those were the days for providers!!! The State of California in 1983 was implementing Medi-Cal contracting for Medicaid patients. Today, managed care is a large industry, encompassing not only the corporate work associated with its consolidation, but also the securities work, the regulatory and contracting work, the litigation between payors and providers, Medicare Advantage and Medicare Part D and Medicaid managed care.

I could continue on about what it means to be a healthcare lawyer in terms of the areas of practice, what we do, etc., but I think I can identify some common themes that seem to run through what healthcare lawyers do and are. First, they have a commitment to an industry, although most specialize within a subset or practice area of the industry. Second, they are by necessity adaptable to change. Our work is at a fast pace, and the laws, regulations and enforcement thereof necessitate that we be flexible with much dexterity. Third, we have to be continual students, learning and/or creating the newest joint venture, figuring out a way to accomplish something that others have not, and keeping up with our background reading. Fourth, we have to be good networkers, we need to be able to know what others in the industry are doing (e.g., will our firm give this type of opinion?) Fifth, we need to be good innovators, that is find a way to do things if a way can be found, not kill deals. I often say we need to be able to generate numerous permutations for potential solutions. I like to say if there is a way this transaction can be accomplished, we will figure it out. Sixth, we have to be able to work with clients to do the right thing, or at least, not cross over the line. I sometimes think this is the hardest part of all – business ethics. Last, but not least, we have to love what we do, otherwise we will not be the counselors we need to be. We demonstrate this by our attitude, our giving back to our profession in our volunteer service to the ABA and other trade organizations and by mentoring others. At the end of the day, if we do not love what we do, we will not make a difference. And after all, isn't that what healthcare lawyers do — make a difference.

I hope you are making your plans to attend our Emerging Issues Program on February 21st to the 23rd, 2007 in Orlando. It promises to be a fantastic one.

Bill Horton, Hilary Young and the Planning Committee have put a lot of work into it. You can relax on the Saturday after the program by playing in Margarita Cup Golf Tournament. If you do not play golf, this may be exactly the way to start. It is a great event to meet and network with your colleagues and there is a fantastic cocktail party in the evening, where yes, you guessed it ... there will be Margaritas.

Happy Holidays to you and your families.

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

My best regards and thanks for reading.

Next month: Our Health Law Section Staff and what they do for all of us.

Paul R. DeMuro