Health Care Litigation & Regulation | Fennemore Craig

Health Care Litigation & Regulation

Our health care litigation attorneys serve a range of clients within the health care and bioscience industries.

Our health care attorneys have represented a number of private hospitals in the Mountain West, either directly or through insurance carriers. We have extensive experience representing for-profit and nonprofit health care clients in a broad range of areas, including medical negligence defense, commercial litigation, antitrust, e-discovery, business and financing transactions, joint ventures, mergers and acquisitions, governmental relations, licensure, credentialing and other professional matters, including intellectual property, employment, immigration and labor relations. Our clients include acute care hospitals and multifacility hospital systems, inpatient and outpatient behavioral health facilities, health maintenance organizations, physician groups, individual health care providers, long-term care facilities, medical associations, pharmaceutical companies, medical device companies, research organizations and universities, and retail health services.


Administration, Legislation, Regulation and Appeals

Our health care attorneys advise health care clients on regulatory matters involving federal and state agencies; provider agreements and contract review; medical staff organization and credentialing; Joint Commission accreditation; environmental permits and enforcement actions; antitrust issues; National Practitioner Databank issues; health care facility and professional licensure; HIPAA and confidentiality/medical records matters; and local licensure and permitting.

In addition, our health care legal services include advising health care clients on transactional matters involving mergers and acquisitions; financing; legal opinions; business structure and governance; analysis under federal and state self-referral laws, including Stark and Anti-Kickback; corporate practice of medicine; and certificate of need issues. Our health care attorneys also assist physicians and physician group practices in group practice, employment and regulatory matters.

Our medical insurance attorneys have experience with health care provider and insurer liens and reimbursement claims; Medicare Secondary Payer issues and mandatory Medicare reporting under Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007; and Medicaid and Medicare enrollment and changes of ownership (CHOWs). We have represented health care clients in connection with audits and surveys by state and federal agencies, including responding to Statements of Deficiency, preparing Corrective Action Plans and negotiating settlements where sanctions have been imposed.

Our health care attorneys also advise hospitals regarding the authority of statutory surrogate decision-makers for treatment or end of life issues. Additionally, we have assisted with the court appointment of guardians and conservators for incapacitated patients in connection with their hospital discharge.

We also have substantial experience handling appellate matters before federal and state courts, administrative agencies, and regulatory boards and commissions. Our appellate work has included significant matters related to health care litigation and regulatory matters. In addition, our health insurance attorneys have assisted HMOs and health insurers in Nevada in obtaining Certificates of Authority and regulatory compliance.

Our health care attorneys were instrumental in formulating and passing legislation resulting in the deregulation of the hospital industry in Arizona and permitting Maricopa County to privatize the County Hospital. Other legislative issues in which we have been involved include medical malpractice and tort reform; managed care and hospital regulation; nonprofit operations; patient rights; and grievance/appeal procedures. In Nevada, we are active in the Nevada legislature representing such clients as the Nevada Hospital Association and the Association of Dental Service Organizations, as well as medical practice management companies, pharmacy benefit providers and health insurers.

Business Litigation, E-discovery and Antitrust

We represent clients in quality of care and risk management issues, staff privilege matters, product liability, personal injury, and business tort actions. Our attorneys also represent health care related organizations in labor and employment and workers’ compensation litigation. Our environmental lawyers represent health care clients against claims of toxic chemical exposure.

Additionally, we have extensive experience representing major pharmaceutical companies and medical device manufacturers and our pharmaceutical litigation experience includes being involved in litigation for heart valves, hip and knee replacements and other prosthetic and medical devices. Pharmaceutical litigation has included representation of the manufacturers of Prozac and Fen-Phen, among others.

Our data management attorneys have substantial experience in electronic discovery issues including advising health care clients on legal holds and preservation, identification, collection, processing and production of electronically stored information (ESI). Our attorneys focus on assisting clients with both pre- and post- litigation planning, including document and records retention policies, litigation hold policies, and the creation of in-house e-discovery teams, as well as assisting clients with the development, implementation and management of a strategy for collecting, reviewing and producing ESI through the discovery phase.

Our involvement in antitrust matters has included advice and legal documentation services on the formation of physician groups and preferred provider organizations; monitoring and defense of federal antitrust investigations for physician groups; representation of a hospital employee in an antitrust grand jury investigation; and conducting antitrust audits. Our health care attorneys have also represented hospitals and physicians in antitrust actions arising from peer review proceedings, and have represented health care providers and other health care industry participants in private civil antitrust actions and in state and federal enforcement investigations.

Corporate, Commercial and Non-Profit

Our commercial section provides broad-based support and a depth of experience in business matters involving for-profit and nonprofit health care clients. Our health care attorneys offer assistance with an extensive range of commercial transactions, including formation of professional corporations, prepaid health plans and other business entities; financing transactions (including tax-exempt financings); equipment leasing transactions; real estate acquisitions and sales; and tax issues (including tax issues of special concern to tax-exempt health care clients). We have represented hospitals and other health care providers on joint ventures, strategic alliances and securities offerings. We have significant experience representing health care clients in mergers and business acquisition transactions.

Our construction law group is active with matters involving hospital design and construction, with expertise in the structuring and administration of design and construction contracts within the health care industry. Our construction lawyers offer assistance with structuring solicitations for procurement of design professionals and contractors, counseling during selections, and negotiating terms of lender construction disbursement requirements to conform with contract requirements. Our construction attorneys have extensive experience assisting hospitals with resolution of disputes arising from construction, including liens, course of construction disputes, and defects first appearing after completion as well as during hospital operations. Representative engagements include representation of a nonprofit hospital and its affiliates with transactional, real estate and construction matters involving integration of operational issues unique to the health care industry, including the sale of a large health maintenance organization. Our construction lawyers have developed contracts for a major, multi-phase hospital expansion project, as well as developed equipment leasing program documents for a large nonprofit hospital system with facilities in the Southwest and West.

E-Discovery and Data Management

For more than a decade, we have helped clients develop proactive and efficient solutions to address increasing demands for the preservation, management and production of electronically stored information (ESI).

Our E-Discovery and Data Management practice bridges the gap that often exists between technology and the law by formulating solutions that are tailored to the individual needs of each case. In doing so, the goal is to contain risk, minimize cost and facilitate the overall legal strategy.

This evolving practice focuses on assisting clients with both pre- and post- litigation planning. Pre-litigation planning includes items such as document and records retention policies, litigation hold policies, and the creation of in-house e-discovery teams. Post-litigation planning involves the development, implementation and management of a strategy for collecting, reviewing and producing ESI through the discovery phase. These policies and protocols adhere to principles of reasonableness and proportionality, taking into account factors such as the cost, burden and technical feasibilities involved in each case.

With our team of attorneys, paralegals and IT and litigation support professionals, our E-Discovery and Data Management practice offers significant experience handling high volume discovery for complex litigation matters in state and federal courts throughout the country. Through this experience, our team has developed tested methods for streamlining e-discovery processes, including management of the process in-house whenever possible and the use of cutting edge technology to assist with document review and case analysis. This technology includes Relativity®, CaseMap®, TimeMap®, and others. Relativity® is an e-Discovery and early case assessment (ECA) tool that enables attorneys and paralegals to quickly and efficiently assess, review and manage “native” data collections, resulting in accelerated early case analysis, increased defensibility of the e-discovery process and at a significant cost savings for clients. Our e-discovery attorneys are skilled in designing and implementing processes that take advantage of the most appropriate, efficient and cost-effective technologies that will best serve our clients.

Our e-discovery attorneys are at the forefront of this emerging area of law and actively contribute to its development, whether through involvement in leading industry groups, speaking engagements and conferences, or publications on topics related to e-discovery. We also work closely with clients to keep them apprised of new developments in e-discovery through e-newsletters, firm sponsored events, presentations and in-house training.

Insurance Law and Regulation

Our insurance law and regulation attorneys have represented numerous insurance companies in connection with licensure and regulation. We have experience in matters pertaining to:

  • The formation of insurance companies
  • Obtaining Certificates of Authority for indemnity insurers and health maintenance organizations
  • Communicating and responding to the Departments of Insurance in Nevada, Arizona and Colorado
  • Representing insurance companies in mergers and acquisitions
  • Representing insurance companies at regulatory and disciplinary hearings
  • Structuring insurance company relationships with healthcare providers
  • Writing plans of operation for medical professional liability companies
  • Advising insurance companies regarding policy provisions and regulatory requirements
  • Forming and obtaining licensure for third party administrators
  • Forming, obtaining licensure for and advising captive insurance companies, risk retention groups, mutual and reciprocal insurers

Our insurance law attorneys also advise self-insured employers and trusts on regulatory matters and contract negotiations

Intellectual Property

Our intellectual property attorneys have significant experience in negotiating and preparing licensing and distribution agreements in the U.S. and around the world. We assist clients in all aspects of intellectual property rights, including patent, trademark, trade secret, trade dress and related rights. Our intellectual property attorneys can litigate if necessary, but we seek to avoid litigation where possible by identifying and protecting intellectual property in commercial transactions, including licenses, joint development agreements and e-commerce strategies.

Labor and Employment

Our labor and employment attorneys provide counsel in virtually all aspects of the employment relationship. We work with clients to develop programs designed to improve and define employment relationships and reduce the likelihood that disputes will arise. In the event that disputes occur, we regularly represent our clients in labor arbitrations, wage and hour issues, employment contract disputes, discrimination matters and in contested cases in state and federal courts. In addition, we appear frequently on behalf of clients before federal and state administrative agencies.

Life Sciences

We have a large life sciences practice representing clients ranging from entrepreneurs to universities to Fortune 500 companies.

With more than 130 years of experience in supporting the growth and evolution of the region’s entrepreneurs and businesses, we know the territory. We provide intellectual property and life sciences counsel in areas as diverse as:

  • Agriculture
  • Bioinformatics
  • Chemical Processes
  • Cosmetics
  • Diagnostics
  • Dietary Supplements
  • Drug Delivery Systems
  • Drug Discovery
  • Food Chemistry
  • Genomics
  • Immunology
  • Medical Devices
  • Molecular Biology
  • Nanotechnology
  • Nutraceuticals
  • Pharmaceuticals
  • Plant Molecular Biology
  • Pharmacogenomics
  • Proteomics
  • Virology

We are educated in the ways of business, as well as science, possessing education and training in biology, biochemistry, engineering, life sciences, and chemistry. Our approach is thoughtful, yet practical, reflecting not only an understanding of the law, but also the business and research environments of our clients’ industries.

Our clients recognize and appreciate that, not only do we know about the technology behind life sciences, but we are highly experienced in many other issues facing life science-related business ventures.

We can easily call upon the resources of attorneys experienced in financing, joint ventures, mergers and acquisitions, all types of litigation, employment and real estate, as well as other areas.

Medical Negligence Defense

Our representation of hospitals and other health-care providers encompasses decades of experience defending claims of medical negligence and matters involving the peer review and staff privileges processes.

Bringing an in-depth understanding of the medical field, several of our medical negligence attorneys and our nurse consultants are licensed health care professionals. Our clients range from large hospital systems to smaller community hospitals and nonprofit entities which provide health care services. Our case experience is vast, involving such medical specialties as orthopedics, obstetrics, neonatology, pediatrics, radiology, emergency medicine, psychiatry, surgery, neurosurgery, neurology, anesthesiology, internal medicine, cardiology, behavioral health, elder abuse, and many other areas. Our health care attorneys also have substantial experience in physician credentialing; peer review and hospital risk management processes; the scope of physician-patient and attorney-client privileges; issues relating to claims of actual and ostensible agency in the health care context; and Medicare reporting and secondary payer issues.

In addition to litigation, several of our medical negligence attorneys provide seminars and in-service conferences on medical-legal issues to nurses, administrators and physicians.

Our health care attorneys also represent physicians before the Arizona Board of Medical Examiners and the Arizona Board of Osteopathic Examiners; chiropractors before the Board of Chiropractic Examiners; and nurses before the Arizona State Board of Nursing regarding licensure and competency issues.