Your health isn't just your wealth - it's affecting the bottom lines of health care providers, and in turn, the lawyers who serve them. Health law appears to be a booming practice area for many of Wisconsin's large law firms.
Lisa M. Gingerich serves as one of two leaders the Health Law Group at von Briesen & Roper s.c. in Milwaukee. With 24 attorneys serving health care providers, von Briesen purports to have the largest health law team in Wisconsin. Gingerich says that when she started practicing in the area eight years ago, just a few other large Wisconsin law firms with health law departments. Now it seems that all of the state's large firms have them.
Another recent sign of the growth of health law is that two large firms based outside Wisconsin have recently set up branches in Milwaukee, staffing them primarily with health lawyers from the state.
One of them is Hall, Render, Killian, Heath & Lyman, headquartered in Indianapolis, which bills itself as a health care law firm on its Web site. Among the local practitioners they hired was Thomas Streifender, who previously served as von Briesen's managing attorney.
Meanwhile, Gardner, Carton & Douglas LLP, based in Chicago, has a large health care practice and an ancillary business known as Innovative Health Strategies LLC. The firm hired Robyn S. Shapiro, a former health law practitioner with Michael, Best & Friedrich LLP in Milwaukee and director of the Bioethics Center of the Medical College of Wis-consin, to head the department in its new office.
In effect, both firms have established the state's first health law boutiques.
What is Health Law?
Health law is a broad and rapidly-growing concentration, which encompasses practice areas within it, explains Shapiro. Some of those practice areas under the health law umbrella include tax, business law and transactions, em-ployment law, banking, finance and tort law, intellectual property, litigation and real estate, to name just a few.
Not surprisingly, according to Shapiro, the clients are a diverse group, too. They range from individual health care providers and groups of providers, to hospitals, long-term care facilities, hospice and assisted living providers, to spe-cialty hospitals, health care provider associations, or members of the allied health professions.
It's a complex practice area with a steep learning curve, says Sarah E. Coyne, one of two partners in the health law group of the Madison office of Quarles & Brady LLP. "No one dabbles in health law," she cautions.
Because no one can master all of these areas, co-counseling with colleagues is a frequent event in the workday of a health lawyer, says Shapiro. It is one aspect of the practice that she finds very enjoyable: Perhaps like no other group of practitioners within her firm, the health law group regularly interacts with a large spectrum of the firm.
The issues vary dramatically and typically involve weighty consequences, she continues. For starters, there's how doctors care for their patients and how they make decisions in the treatments they administer. Then there's a whole host of bread-and-butter business concerns: how to operate profitably and ethically within a highly-regulated environment, and employer/employee concerns. In addition, there are the more abstract concerns, such as bioethics issues of embry-onic stem cell research, end-of-life and organ transplant concerns.
Alison Barnes, a health law professor at Marquette University Law School, observes, "Health care is about as highly-regulated an area in the country, except for the airline industry."
Why is Health
Law Growing Now?
It's a hot area of law because it's a hot area generally.
Americans, and Baby Boomers in particular, are aging. And everyone, regardless of age, is using health care more often than in previous generations, hypothesizes Shapiro. Science and medicine are advancing quickly - and try as it might, the law is never quite able to keep up. But also, health care is expensive, and getting more expensive every day, she says. There's an ongoing tension, to some degree, between keeping costs down and providing the best care possible.
Liability for malpractice is the traditional, ever-present concern for health care providers, made even more visible in Wisconsin with the Supreme Court recently lifting the cap on noneconomic damages in wrongful death cases in Fer-don v. Wisconsin Patients Compen-sation Fund. So in some ways, health law is a reactive practice, when providers must fight negligence claims.
But that also makes health law a proactive practice. Much of a health lawyer's time might be spent consulting with clients on risk management and avoiding claims. For example, a likely consequence of Ferdon, Shapiro says, will be that health care providers will engage in more peer review, more often in the tough cases. They will also probably be more cautious in their hiring and employee-review practices.
For her part, Coyne says she wandered into health law as a litigator five years ago, just doing "reactive" legal work, but found the proactive advising part of the practice so enjoyable that she decided to stay in health law exclusively. Coyne's forte these days is regulatory compliance for health care providers.
Health Law Grows on Campus
Coyne didn't take a health law class in law school, because no such class existed. "I think just a handful of law schools offer health law classes, and even when they do, it's usually very generalized - 'An Overview of HIPPA in 10 minutes.' So it's very much a learn-on-the-job, as you go kind of practice," she observes.
Gingerich has done a great deal of on-the-job learning as well. Her law school, California Western in San Diego, did have an overview health law course, as well as classes on topics like biotechnology and ethics issues: "But to me, that's just a sliver of what health law is. My clients are more worried about issues like how to start their ventures, how to set rules within them, what they can and cannot bill for, what permits they need to do XYZ, etc."
Gingerich handles the recruiting within her department, and notes that Marquette, as well as Loyola in Chicago and St. Louis University all offer multiple courses in health law, and have well-prepared their students to enter the health law field.
Barnes says that law schools offering health law courses in the 1970s, '80s and early '90s were few and far between. Health law started catching on in the academic setting in the '90s.
That's when she, incidentally, came to Marquette to build its health law curriculum. It's been an incremental proc-ess, starting in 1994, with an overview course that she taught. Before then, adjuncts taught the course, with a focus al-most exclusively on medical malpractice. The school is now up to 12 health law courses, including the most recent addi-tion, "Health Care Fraud and Abuse." As the courses have developed, they have added the cutting-edge, highly theoreti-cal courses as well as those looking at the practical, business-management side.
The law school has recently added a dual degree program, along with the Medical College of Wisconsin Center for Bioethics, for students earning J.D.s at the law school and master's degrees through the Medical College.
In addition, Barnes says that every year, approximately 25 students complete their J.D.s having taken all the health courses, who go on to careers in the health law field.
"We don't have everything that anybody could ever have in health law. But we do cover all the important topics. They acquire the fundamental expertise, in an area that has a lot of regulatory backwaters. Our graduates should be of great value to any health law practice," she says. "It's always very satisfying for me to see students using what they have learned."
Health Law Challenges and Benefits
The health lawyers who talked to Wisconsin Law Journal agree that the best aspect of working in their field is its fascinating and ever-changing nature. It is for lawyers who enjoy an intellectual challenge, and with endurance to keep on plowing through stacks of medical journals or reams of regulations.
Shapiro, who keeps herself healthy with daily runs, says health law can be a lot like long-distance running. Just when you think you've gone the distance on a topic, the next day, you need to get out there are do it again - because health law is a highly dynamic area. It can be exhausting at times to stay on top of it. But for those who can do it, the job opportunities are plentiful, working with high-quality, highly sophisticated clients.
Gingerich says, "For me, health law was the perfect recipe. It changes everyday; yet, it still allows me to apply some of the traditional legal principles I learned in law school. It affects a huge portion of our economy, and people's lives - and it will even more so in the coming years."
Coyne agrees. "It's a hard job, but it's fun. There's always work in the area, because there are always new laws in the works and emerging medical developments, and health care entities absolutely will always need good lawyers to help them sort it all out," she says. "At Quarles, our department is growing really fast, and I think there will be a steep upward slope in growth in the future."
Gingerich echoes those sentiments. "We're always looking for good lawyers. We hire a lot of laterals, some who have worked in health law before and some who have worked in other practice areas who can bring that expertise to our department - in labor and employment law, for example. A lot of our health law clients are the largest employers in their towns, and they need employment law advice with that health care twist," she says.
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