Archive for November, 2012

Proceed With Caution: Matters to Consider for Business Lawyers Transitioning into Health Care

This article first appeared in the NY Business Law Journal in November 2012.

When venturing into areas of law outside their usual practice, attorneys should be mindful of state-specific standards to which they are held.  Rule 3-110 of the California Rules of Professional Conduct sets the standard on the west coast, just as Rule 1.1 of the New York Rules of Professional Conduct applies on the east.  Absent the requisite skill to accommodate a client’s needs, an attorney may still engage and adhere to the statutory definition of competence by “associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent” or “by acquiring sufficient learning and skill before performance is required.”[1]  In 2003, a California Appellate Court explained:  “Attorneys are expected ‘to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.’”[2]

However, due to the sheer volume and complexity of information generated regularly in the wake of reform, modern health care law exists in a league of its own. Continue reading →

The Evolving Relationships Between Hospital, Physician and Patient in Modern American Healthcare

This article, written by Craig B. Garner and David A. McCabe, was first first published in the Journal Health, Culture and Society, Vol. 3, No. 1, on November 16, 2012.


Today’s healthcare climate is one of uncertainty, with the longstanding bond between doctor and patient growing ever more tenuous as the nation reacts to fundamental changes within its healthcare structure. Since March 2010, when President Obama signed into law the Patient Protection and Affordable Care Act[1] as amended by the Health Care and Education Reconciliation Act[2] (collectively referred to as the Affordable Care Act or “ACA”), the federal government has continued to release information aimed at clarifying and expanding upon the original 2,700 pages of codified reform. At its core, ACA seeks to prohibit health insurers from denying coverage or refusing claims based on pre-existing conditions, expand Medicaid eligibility, subsidize insurance premiums, provide incentives for businesses to offer healthcare benefits, and increase support for medical research.

As the implementation of these new programs, partnerships, preventative care measures, competitions and grants steals headlines daily, ACA’s ramifications underscore the ways in which the Federal government has increased its presence in healthcare in an effort to ensure that the allocated trillion dollars in federal funding remains accountable. Arguments made by both critics and supporters of ACA have become all too familiar in the ongoing debates, with each side citing the nation’s growing economic crisis as a major factor in ACA’s future.  Continue reading →

Book Review: “Obamacare on Trial”

This book review was first published in the Daily Journal on November 9, 2012.

With 225 years separating the ratification of the Constitution of the United States and the landmark United States Supreme Court decision National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), the Constitutional impact of Chief Justice John Robert’s majority opinion will resonate down the labyrinth of Federalism for decades to come.

As it relates to the 2010 Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act, the holding is clear and concise, even as the legacy of the Affordable Care Act has yet to be determined.  Few scholars will disagree on the meaning of the Court’s ruling – that the Affordable Care Act’s individual mandate is constitutional and the Medicaid expansion provisions will survive – although the way in which the Court reached its conclusion remains the subject of heated debate.

Einer Elhauge’s Obamacare on Trial approaches the Supreme Court decision much like the Phythia at Delphi, although sadly this latest collection of high profile, widely published essays conclude where the real story begins. Continue reading →

Redefining the Valuation Methods of Modern Day Hospital Care

This article was first published in the New York State Bar Association’s Health Law Journal, Vol. 17, No. 3 (Summer/Fall 2012).

Due to the sensitive nature of the industry it services, the American hospital must rightfully operate under copious federal and state regulations, in addition to volumes of rules and ordinances established by separate, non-governmental entities. Though policing policies such as accreditation, certification and periodic review come from a variety of both public and private sources, the goal is generally consistent: develop uniform standards to ensure that hospitals in the U.S. operate at an acceptable safety level while delivering quality patient care.

The Many Paths to Accreditation

Though its primary function is without question the delivery of accurate and effective medical treatment, health care is also big business. Continue reading →


Switch to our mobile site