February 2013 Volume 9 Number 6

Chair's Column: The Way We Were

By David L.Douglass,Shook, Hardy & Bacon L.L.P., Washington, DC

AuthorThe good old days. The good old days. Everybody’s talkin’ about the good old days.

—Gladys Knight

This past month I have found myself thinking about change. A lot. Some of it is the time. A presidential election is all about change, one way or the other. A New Year invariably leads us to contemplate change. Many of us celebrate the New Year by resolving to make changes in our lives. And, of course, as health lawyers and allied professionals we have been thinking of change in the form of healthcare reform. We’ve come through, “will it pass?” and “will it be upheld” to “will it be repealed?” finally to arrive at “we’re here.” For the last few years, being a health lawyer has felt like being a six year old in the back seat of the car on a long road trip. You’re not in the driver’s seat so all you can really do is ask, “are we there yet?” And, having now arrived, our clients are asking, “so, what now? What do we do?”

Dealing with change can be unsettling to individuals and companies because it is both real and imperceptible. It’s all around us, happening to us right now, in fact. We can sometimes sense it coming. We can often see its consequences. We can even feel its effects. That’s certainly true of healthcare reform. So, naturally, we wonder and sometimes even obsess: Will this change be good for me or bad? What should I do? What can I do? Change seems like the Higgs Bosun particle. We know change happens not because we observe it directly but because we see its imprint. And if, like the Higgs Bosun particle, we can observe change only indirectly, by its effects, then we are inescapably living in the past. Because by the time we are aware that things are changing, they in fact have already changed. And we are forever playing catch up.

Could it be that it was all so simple then or has time rewritten every line? If we had the chance to do it all again, would we? Could we?

—Alan and Marilyn Bergman

We can’t resist change because we can’t go back in time. (Although, for a truly moving story of one man’s lifelong effort to travel back through time to be with his father, make yourself a cup of tea (“Earl Gray, hot.”) and listen to This American Life episode 324, Act Two, “Tragedy Minus Time Equals Happily Ever After”). So, what can we do? We can mourn it or celebrate it. We can accept it. We can embrace it. We can try to reject it but science and experience teach us that those who fail to adapt to change risk extinction.

Whether celebrated or mourned, change creates possibilities that previously did not exist and opportunities not previously imagined. Change closes the door to the past but opens a window to the future. We see this in our profession and in our practices. The economic pressures and challenges on the legal profession have never been greater. Yet the opportunities for health lawyers have never been brighter. Despite the challenging times for the profession, I frequently hear, “It’s a great time to be a health lawyer.”

Our Section is changing with the times. We are subject to the economic headwinds that challenge our efforts to increase membership and to offer more high quality services to our members. Yet our membership is up and we continue to provide more and better member services. We have launched a social media initiative to open new communication channels for our members. We are offering more webinars and expanded our live programs. In June we will present the first ever National False Claims Act and Qui Tam Trial Institute, which will focus on the unique demands and challenges of litigating false claims cases. We continue to establish new groups to serve important segments of our membership, such as our Nursing And Allied Healthcare Issues Task Force. We have also formed a Substance Use Disorder Task Force that will raise the ABA’s voice and role in addressing a serious and enduring public health issue. These efforts are the fruit of the willingness of our committee and Interest Group leadership, our members and our staff to embrace the challenges that change presents and the Section is stronger for it, an achievement we should celebrate.

In our practices we are called upon to advise clients about how to respond to changes in healthcare and health law. This is a daunting request when we ourselves do not know where the changes we are experiencing will lead. So, we tell our clients what we tell ourselves. As much as we might like, we cannot change the past. Like it or not, we say, the changes we are experiencing offer us the opportunity to realize new possibilities. Our best choice, we counsel, is to move forward, navigate change as we encounter it, guided by our North Star and advised by our experience. We must accept change to survive but if we embrace it we can thrive.

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