Iryami Law Blog

It is not unusual for doctors--or perhaps, anyone--to feel a bit apprehensive about lawyers. But a recent article in a business publication discusses how sometimes a lawyer can be a doctor's best friend.

Yes, some lawyers bring medical malpractice cases against doctors on behalf of their patients. No, most doctors don't care much for those lawyers. As the article published in the Las Vegas Business Press points out, however, there exist other lawyers who help doctors safely navigate "a virtual minefield of state and federal regulations." There are various names for this field of law. Health Law is one. I prefer Healthcare Law.

Healthcare Law (or Health Law, if you prefer) appears to be little understood, as evidenced by the number of questions we receive about this practice area. Healthcare providers--be it, hospitals, nursing homes, or doctor's offices--have all the usual legal needs of any business. They have to have a lease with their landlord. They need employment agreements for their employees. And, they get sued by their vendors, as any business might. Healthcare being a heavily regulated industry, however, healthcare professionals must also comply with a myriad of federal and state regulations. Federal and state self-referral laws (STARK Law). Federal and state anti-kickback law. State professional licensing rules. State public health law. State privacy laws. And, oh yes, HIPAA.

All of these laws and regulations are part of that minefield that the article discusses.

Fortunately, there is some good news. As alluded to in the article, healthcare lawyers are there to walk doctors and other healthcare professionals through the minefield. And there are indeed safe passages through the minefield. Successful passage depends on the doctor and the healthcare lawyer working together. Doctors who fail to reach out to such lawyers, the article says, do so at their own peril.

"Nothing, " I responded to the man who had asked me how much I charge to file the papers for him to start a corporation for his new business. Knowing that he would be surprised, I quickly provided the explanation:

"To start a corporation for your new business, all I have to do is to pick up the phone and basically provide the name that you want for your new business to this private agency that I use. And shortly thereafter, your company is formed!" I then explained that the client would, of course, have to pay for the state's filing fees, and the modest fee the private agency charges me for filing the necessary papers. But I pocket nothing. "I charge by the hour. What am I going to do--charge you $8.33 for the two minutes of my time?" I concluded, I don't think so. I charge nothing!"

The same applies whether the business to be formed would be a corporation or a limited liability company. The process will cost the client a few hundred dollars in filing fees and such. I get nothing--except the thanks of a satisfied client. And, in the end, that is all that counts.

Yes, it is usually a good idea to actually put any agreements with others into writing. And, yes, certain agreements--like an agreement to buy a house--must be in writing to be enforceable. But you can sue--or be sued--for breach of contract even if the agreement was never in writing.

A written agreement is actually one of three kinds of agreements that can be biding under law. A second kind is an oral agreement. Oral agreements, as the term suggests, are agreements that are made through spoken words. Asking the neighbor's kid to shovel your driveway for $50 might be an example of a binding oral contract.

The third kind of binding agreement is known as an implied contract. Implied contracts are made through conduct not words. Remember the squeegee men on the streets of New York City? They would rush to your car and start washing your window shield during red lights and then demand that you pay them for their service. Even though you had never asked them to wash your window shield, believe it or not, a binding implied contract could be argued to have been made by virtue of the fact that you sat there in your car watching the man perform the service and not objecting to his doing the work. (Of course, many would object but to no avail).

In the business world, the stakes are often far higher than the example of the squeegee man or the neighbor's kid. But the same concepts apply. There might be a binding agreement even if the agreement was not in writing. So a breach of contract can exist even if the agreement in question was made through spoken words or conduct.

So I was asked the other night by someone I met at a function if a particular lawyer was the "best lawyer in New York"? Best lawyer in New York? Hmmm.

The question was quite natural. We all want to use the "best lawyer" we can find. And for the money that lawyers often charge, we figure, he or she better be the best! Still, the notion of the 'best lawyer in New York' is a bit more complicated.

Ultimately, you want to choose the best lawyer in New York--for you and your particular matter.

To begin with, you need to make sure that the attorney of your choice handles the kind of matter you need. Your podiatrist brother-in-law may indeed be among the best in his profession, but he would be the first to refer you to a cardiologist if you are complaining of chest pains. To a certain extent, similar concepts apply in choosing a lawyer. I, for example, have never handled a divorce case in my years of legal practice and would be the first to refer such cases to those who do handle them.

That is not to say you need New York's most specialized lawyer in every matter. If you are looking to start your own small business, you don't necessarily need to hire a lawyer who has been hired by Microsoft. Sure, you do need a lawyer who is familiar with New York corporate law, but you are probably wasting your money if you are hiring for your start-up venture a law firm that primarily handles Fortune 500 companies.

In the end, the choice of the best lawyer for you may come down to comfort level and trust. You need to make sure that you can trust your own lawyer. How can you tell? Asking trusted friends is one way. Having a conversation with the lawyer can sometimes give you some clues. And, sometimes you have a third way.

That third way is to see if others have trusted him. Lawyers often list their affiliations with various professional or charitable organizations on their web sites. See if the lawyer has been entrusted with positions of trust and leadership in such organizations. No, it's not a guarantee. But using a lawyer who has been entrusted by a number of organizations and associations may be worthy of your trust as well.

Or maybe not. As I said before, the matter of the "best lawyer" is really a matter of the best lawyer--for you.

In case you missed it, we wanted to share an article that first appeared in the New York Times last week about the troubles that HIPAA has continued to pose for healthcare providers. The article points out how HIPAA, a complex federal privacy statute, has been misunderstood. Even those who wrote the law are unhappy with the results:

"Senator Edward M. Kennedy, Democrat of Massachusetts, a sponsor of the original insurance portability law, was dismayed by the “bizarre hodgepodge” of regulations layered onto it, several staff members said, and by the department’s failure to provide “adequate guidance on what is and is not barred by the law.” Further legislative measures are reported to being considered.

Of course, help cannot come soon enough for those healthcare providers who are trying their best to help comply with HIPAA. The only solace for them is that, with the proper legal guidance, hospitals, nursing homes, doctors, and others healthcare professionals can navigate the confusing and hard-to-understand provisions of HIPAA.

The New York Times article can be found here:

www.nytimes.com (registration may be required).

Or here:

http://www.tuscaloosanews.com/

New York Attorney General Andrew Cuomo has issued subpoenas to more than 50 home care agencies as part of his investigation into fraud and abuse in the health care industry.

This news has been splashed on the pages of the major newspapers in New York City and Long Island today, from the New York Post to the New York Times.

The agencies targeted in this investigation will now have to deal with the considerable headache of producing documents to the Attorney General and figuring out as best they can, with the advice of their counsel, if they face any potential legal liability.

But the news also serves as a warning to other healthcare providers. If you bill Medicaid, Medicare and/or are subject to regulation by the New York State Department of Health or other regulatory agency, government authorities, including the New York Attorney General, are increasing scrutinizing your operations to make sure you are complying with the myriad of state and federal statutes and regulations that apply to you.

If you have any questions on whether your entity is in compliance with the pertinent statutes and regulations, please feel free to contact us.

Welcome to the Raymond Iryami Law Firm P.C. Blog! Here, we hope to share with you news, information, and perspective relevant to our practice areas and community. We hope you will find such information helpful. Naturally, we are also here to answer your questions. Please feel free to email me at raymond@raymondiryami.com.