Sometimes You Get Involved in Litigation Whether You Want to or Not

Friday, January 31, 2014
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Sometimes, despite your best efforts and your best practices, you get involved in litigation.

Employees and former employees sue your organization or you or both. Sometimes you are brought in as a witness in such litigation.

Contractors and vendors sometimes may sue over contractual matters. If you are not a party to such an action, you still may be called as a witness.

Sometimes there may be a dispute resulting in litigation regarding the management of your organization, or one between shareholders, partners, members, managers, directors or officers. If you are not a party to such litigation, you may still be called to testify as a witness.

If you are an officer or director of an organization, it is more likely that you will be involved in litigation on behalf of the organization.

Of course, if you are involved in providing health care to patients, the possibility of litigation for alleged professional negligence is always a risk. Likewise, being called as a witness to testify in such a case may occur.

In a highly regulated area such as health care, there may be audits, investigations, administrative complaints, civil suits or even criminal actions initiated against you or your organization related to regulatory matters. These may be initiated by state or federal agencies or law enforcement authorities. They may be initiated by competitors. They may be initiated by whistleblowers seeking to obtain a reward for bringing such an action. If not directly involved in such litigation as a party, you may nevertheless become involved as a witness.


Health Care Litigation Can Become Very Complex.

Health care litigation may start off as what appears to be a simple straightforward case, such as a breach of contract, wrongful termination, employment discrimination, unpaid wages, enforcement of a restrictive covenant or other such case.

Some suits, from the commencement, may be in areas considered to be complex. These may include antitrust suits, qui tam (whistleblower) suits, class action suits, shareholder derivative suits, products liability cases, or suits involving a large number of parties.

In many cases, the litigation starts out as a simple case, but because of counter-claims, cross-claims or third party claims by parties in the case, the simple litigation becomes complex.


Your Employer, Your Insurer, Your Legal Representation and You.

If you work for a medical group, health facility or organization of any size, it probably carries ample insurance to protect itself in most of the areas given above. In smaller organizations, the physicians and other professional employees should check to be sure about this. Request a copy of the insurance coverage or “declaration” sheets from the different policies. If adequate insurance coverage has not been obtained, attempt to have the organization purchase it.

However, just because the organization is covered by insurance does not mean that you as an individual are covered if you are sued individually and the corporation isn’t.


Multiple Parties Represented by a Single Law Firm Can Present Problems Because of Conflicts of Interests.

Even if there is no individual insurance coverage for you, your employer or organization may have the attorneys representing it extend their services to you and agree to represent you, as well. This is primarily because often the corporation could be held vicariously liable for your individual acts.

However, any time one law firm represents multiple parties, there is the potential for a conflict of interest.

If the individual committed an intentional act or violated corporate policies giving rise to the suit, the corporation or its officers may have a defense that conflicts with your defense. If several individuals have been sued together and you know that one is actually the wrong-doer, your defense conflicts with that of the other. One law firm should not be representing both parties.

Occasionally the individual may have left the group or organization. The organization and its remaining employees may attempt to lay all the blame on the one who has left the organization, in order to protect themselves. We have experienced such cases.

Any time an employer or an insurer requires you to use the same law firm as all of the others, you must carefully examine the question of whether the law firm will be using its maximum efforts to protect your interests or those of the organization or insurance company. If you are individually covered by the same insurance, you have a right to have the insurance carrier provide you a separate attorney (law firm) not associated with the first, to represent solely your own individual interests. Demand this if it applies.

Regardless, you may obtain your own independent attorney to review the matter, advise you, and protect your interests. This is often called “personal counsel.” You may have to pay your personal counsel out of your own pocket, but it is well worth the cost to ensure your individual interests are protected.


Seek Your Own Insurance Coverage to Protect Your Personal Assets and Interests.

To me, the primary purpose that insurance of any kind serves is to pay for your effective legal defense from the time your first receive notice of any possible suit or claim. In the absence of good insurance coverage, you will be required to rely on the attorney of your employer (or organization), if it decides to provide you this coverage, or to pay out of your own pocket for legal fees. Good, aggressive, knowledgeable counsel is expensive and, unless you are independently wealthy, may leave you at a disadvantage for the protection of your interests. In cases where you have been terminated by an organization or you are no longer employed by the organization, the organization may be less inclined to provide you any legal representation.


Obtain Adequate Personal Insurance.

Ordinarily, you can obtain “broad form” insurance coverage through your current professional liability insurance carrier, sometimes by paying a small, additional premium. If this is not available, then you should seek separate coverage that will protect you from complaints and claims involving discrimination and other employment-related matters, administrative and civil cases involving Medicare and Medicaid overpayment claims, and as many other legal and administrative proceedings as possible. Insurance that pays legal expenses for a deposition, even when you are not a party, is a must; you may start off as a witness in a case and wind up as a party added to it, because of your deposition answers.

Seek such insurance through your insurance agent, through your state medical society or your professional society. Insurance may be available from large insurers such as Lloyd’s of London or companies that provide legal defense expense insurance.


The Health Law Firm’s Attorneys Represent Physicians, Health Professionals and Health Care Facilities as Plaintiffs, as Defendants and as Independent Personal Counsel.

The attorneys of The Health Law Firm have experience representing physicians and other health providers in business litigation, administrative litigation and other litigation matters no matter what their part is. Whether the case is in state court, federal court, a state administrative proceeding, or a federal administrative proceeding, we are prepared to provide representation.

Whether the litigation involves a corporate break up, unfair and deceptive trade practices, contract issues, covenants not to compete, partnership disputes, termination of employment, actions by Medicare, Medicaid or other state and federal agencies, whistleblower actions, wage disputes, disputes with insurers and other payers, HIPAA violations, EMTALA litigation, or others, we are able to represent you.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.


Comments?

As a health care provider, have you ever been involved in litigation? Please leave any thoughtful comments below.


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.


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1/31/2014

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