February 25, 2016 Articles

An Industry Crash Course for the Aspiring Healthcare Litigator

Junior litigators often assume that, to become a healthcare practitioner, they must have a strong understanding of the many facets and intricacies of the healthcare industry from day one. This is not true.

By Eric W. Shannon

As a relatively new lawyer practicing in a large city, I have been fortunate to meet other young litigators in various settings. When I’m inevitably asked what I “do” at my law firm, I explain that my professional practice centers largely on representing clients in the healthcare industry. On numerous occasions I have heard some permutation of the following sentence in response: “You know, that’s something I thought I might want to do but I don’t really know anything about the healthcare industry—like, who all the players are and how it actually . . . works.” My conversation partner typically lowers his voice for the second half of that sentence, as if he’s confessing something shameful and taboo to me, like that he hasn’t filed his income taxes in six years. Now, some of these folks are certainly just being polite; they don’t think what I’ve just said is even vaguely interesting, and they have zero interest in doing the kind of work that I do. But I really do think that some of them genuinely mean what they say. They’re interested in healthcare matters, but believe that having a robust understanding of the healthcare industry is an absolute prerequisite to becoming a “healthcare litigator.” This, in my opinion, is unfortunate because it simply isn’t true. If you want to be a healthcare litigator, does it help if you show up on the first day of your job knowing the difference between Medicare Part B and Medicare Part D? Sure. Have you missed your shot at practicing healthcare law if you show up on day one (or, dare I say, even practice for several years) not knowing the difference? Absolutely not.

The healthcare industry is extremely complex. Trying to understand all of the forces at play is intimidating, no matter what your background. But during my (limited) time as an attorney, I’ve learned two dirty little secrets. First, there are very few attorneys who are experts in all of the areas that could fall under the penumbra of “healthcare litigation.” Some of the most brilliant, talented, and successful healthcare litigators I know still make a concerted effort to learn about new health-law topics. Second, daunting though learning about healthcare on your own may be, it is entirely doable. Don’t misunderstand me—it requires a genuine interest and dedication. And it won’t happen overnight. Below is my syllabus for a “DIY crash-course” on the basics of the American healthcare industry for aspiring health litigators.

Books/Articles
If you’re serious about health litigation, a must-have for your bookshelf is Law and the American Health Care System, by Sara Rosenbaum, David Frankford, Sylvia Law, and Rand Rosenblatt, currently in its second edition. It is, I admit up front, a casebook. Among all of the casebooks I’ve pored over, however, this casebook is perfect because it’s written for healthcare novices. There are actual cases, of course, but the chapter content before and after the cases is worth its weight in gold. It explains the history and evolution of the U.S. healthcare system in a digestible manner. It describes the major players in the health industry, while also explaining the nuances of such areas as preemption, insurance, remedies, apposite statutes, etc. And, as a lawyer-reader, the cases are accessible should you feel the need to really dive in. For those especially interested in health law as a field of academic study, be sure to read Theodore Ruger’s “Health Law’s Coherence Anxiety,” 96 Geo. L.J. 625 (2008).

Another excellent (and, as of this writing, freely available) resource is the 2013 United States-focused review in the “Health Systems in Transition” series published by the European Observatory on Health Systems and Policies (T. Rice, P. Rosenau, L.Y. Unruh, A.J. Barnes, R.B. Saltzman, and E. van Ginneken). Readers can benefit from a concise executive summary, and pick and choose from chapters focused on individual topics such as Organization and Governance (Chapter 2) and Provision of Services (Chapter 5). While this article is written with litigators in mind, those with an interest in transactional work should check out Health Care Mergers & Acquisitions Answer Book 2015, by Andrew Bab and Kevin Rinker.  

Last, but certainly not least, the ABA Health Law Litigation Committee will be publishing two books this year, each of which will contain contributions from health law litigation specialists. Introductory Guide to Health Law Litigation Based on Contract and Government Claims(Aaron Krauss, editor) is currently slated for release in May 2016, and Introductory Guide to Health Law Litigation Based on Tort (Caldwell G. Collins, editor) is scheduled for release in late 2016.

News Outlets
A number of news outlets have health-industry-specific sections or are exclusively dedicated to the same. Fiercepharma.com falls in the latter category; it is free and, as of the time of this writing, offers a daily “pharma industry” e-newsletter. Of course, the legal reporting juggernaut Law360 is an excellent resource. The site has a “Life Sciences”-dedicated section and also offers a daily email digest. Among more mainstream news sources, The Wall Street Journal is hard to beat in terms of daily coverage of large health-industry movers and shakers. Oh, and I’d be remiss not to mention that the ABA Health Law Litigation Committee’s website is an excellent resource for both industry Practice Points and longer articles such as the one you are reading now.

Law Firm Updates/Blogs
A number of law firms issue regular client-update articles in response to significant happenings in the health industry. Debevoise & Plimpton LLP (full disclosure—I work there) issues top-notch client updates here, with the option of zeroing in on the healthcare industry. Reed Smith LLP’s “Life Sciences Legal Update” is an insightful and regularly updated resource, as is BakerHostetler LLP’s Health Law Update. Gibson, Dunn & Crutcher LLP also releases the semi-annual (mid-year and year-end) FDA and Health Care Compliance and Enforcement Updates, which are jam-packed with critical information on the medical device and pharmaceutical industries. (To get a feel for regular happenings in government enforcement in the healthcare space, browse press releases on the Department of Justicewebsite. In particular, the U.S. Attorney’s Office for the District of Massachusetts oversees a substantial amount of health industry law enforcement. Also worth visiting are the websites for the Federal Trade Commission, the Food & Drug Administration, and the Department of Health & Human Services Office of the Inspector General.)

Films
A number of documentary films center on the healthcare industry; many have a slant or “spin” that can be distracting to a health-industry newbie. One documentary I highly recommend is Escape Fire: The Fight to Rescue American Healthcare (Roadside Attractions, 2012). Though it has a point of view, Escape Fire provides an incredibly informed and informative look at the delivery of healthcare in the United States. I would also recommend the Oscar-nominated documentary How to Survive a Plague (Public Square Films, 2012) to anyone, really, but especially to lawyers or law students interested in learning about the nuanced interplay between the U.S. political/regulatory healthcare regime and community activism in a time of crisis.  

Final Thoughts
In addition to the above resources, I offer one piece of advice to those aspiring to do healthcare litigation who may feel like they’ve missed the boat: After doing your homework, dive in and relentlessly ask questions. Every time someone references a term or a concept you’re not familiar with, politely ask what it means. If your colleague can’t explain it to you in a way that would make sense to a six-year-old, then he or she may be due for some DIY crash-course homework.


Keywords: litigation, health law, young lawyer


Eric W. Shannon is an associate with Debevoise & Plimpton LLP in New York, New York.


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