Outside counsel must know what you need from them
(Editor's note: This is the second of a two-part series on how to get the most from your relationship with inside and outside counsel. Last month's article discussed how to work best with your in-house counsel. This month's Healthcare Risk Management will explore how to best work with outside counsel.)
Working with outside counsel can be very different than working with your corporate colleague, and a few tips can help you get the most from that relationship. Keep the costs of outside counsel in mind but don't make it the primary consideration, attorneys and risk managers say.
It can be a challenge to balance a desire to save money on legal expenses with the need to obtain good representation, says Stacy Gulick, JD, an attorney with the law firm of Garfunkel Wild in Great Neck, NY, and a former hospital risk manager. Don't be afraid to consult legal counsel when drawing up policies and procedures, for instance, she says. Preparing solid policies and procedures can help avoid many problems and make incidents far easier to defend, Gulick notes.
James M. Stewart, JD, a partner with the law firm of Stewart & Stimmel in Dallas, also warns that it can be a mistake to focus too much on hourly rates and other cost concerns.
"Risk managers clearly have an obligation to achieve the best possible result in the most cost effective manner; however, the way to control this is not to simply select the lowest-priced firm," Stewart says. Quality counts, he emphasizes. "Effective lawyers get cases dismissed earlier and have stronger cases going into trial or mediation, which leads to lower monies spent."
A good relationship with one attorney in the law firm is important, Gulick notes. Develop a rapport with that one person, even if he or she can't satisfy all your legal needs. When you need a referral to another person in the firm or even elsewhere, it will be more productive for your close contact to make the connection than for you to do it yourself, she explains.
Also, using a discreet number of firms is more efficient, Stewart says. The firms begin to know the processes, policies, and other areas and do not have to reinvent the wheel each time there is a new lawsuit.
Gulick reminds risk managers that the billing structure will be different when working with outside counsel who handle malpractice cases and a firm handling any other legal concerns. For medical malpractice cases, the attorneys usually will be paid directly by the insurer and the risk manager won't receive a bill. For other issues, the attorney probably will bill you every time you pick up the phone with a question. That fee should not discourage necessary interaction, Gulick says, but keep in mind that frequent chats are not free.
"It's unfortunate that sometimes the billing structure dictates how you interact with people," she says. "But at the same time, you have to remember that you can be too cheap up front, and it will cost you in the end."
Gulick notes that risk managers should not be cowed by outside counsel. While counsel will be the expert on the legal system, risk managers have their own areas of expertise and shouldn't be shy about contributing, Gulick says. "The risk managers who deal best with outside counsel are the ones who are very well educated about their own jobs," she says. "This should be a partnership in which you work to each other's strengths, so the more you are skilled as a risk manager, the more you can get out of your work with outside counsel."
There does come a point at which your outside counsel should take the helm, Gulick says. They have more resources available and more skills in certain areas, so be prepared to let outside counsel take over when appropriate. When outside regulators become involved, for instance, it is time to let outside counsel take the lead.
Choose someone you can work with
Linda Stimmel, JD, Stewart's partner and cofounder of the firm in Dallas, makes another point that often goes overlooked when choosing outside counsel.
"We would advise risk managers to actually like the attorneys they chose as outside counsel," she says. "That leads to more communication and effective communication because they think alike." Along with liking your attorneys, you must trust them, she says. "It will be very harmful when a risk manager second-guesses everything provided by an attorney," Stimmel says. "That is the surest way to increase legal fees needlessly as the attorney will feel the distrust and probably 'overdo' everything."
When working with outside counsel, the most important things that risk managers should keep in mind are good, ongoing communication, access to personnel, and access to records, says Tony Corleto, JD, founder of Corleto & Associates, an insurance defense law firm based in Danbury, CT, and White Plains, NY.
Getting attorneys in touch with the people who are involved in the situation in a timely manner is extremely important, Corleto explains. Outside counsel needs to have access to people who were directly and indirectly involved. Risk managers at health care facilities can best help by reviewing the records to identify everyone potentially involved directly or as a witness and by making sure that the involved personnel know there is a legal issue that may require their time and effort.
Records also are critical, and Corleto says patient and treatment records are just the start. If a piece of equipment or a product is involved in a case, for instance, every document, from user manuals to training notebooks and safety meeting logs, will be needed.
Be prepared for the attorney to conduct a thorough investigation. In fact, you should insist on it, in order to properly defend against any claims. (See box below for more on outside counsel investigating the incident on site.) "The rule of thumb is that every hour in the courtroom requires 10 hours of preparation, investigation, and discovery," Corleto explains. "A visit to the site of the treatment or alleged injury is almost always necessary."
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Outside counsel should visit where incident occurred Risk managers should expect more than telephone conversations with outside counsel. In most cases, counsel should visit your facility to investigate first hand, says Tony Corleto, JD, founder of Corleto & Associates, an insurance defense law firm based in Danbury, CT, and White Plains, NY. Corleto notes that visiting the actual physical location where events take place provides counsel with the most in-depth understanding of how an alleged incident might have happened. For example, he cites a case recently handled by his firm in which a physical therapy center was sued for malpractice. The patient claimed that he had been abandoned during treatment on a continuous passive motion machine. At the time, he was being treated for a dislocated shoulder and was claiming that he suffered another dislocation as the result an alleged improper treatment. The client provided all treatment records, but there was much more needed: records for the last prior event and meeting with the physical therapist who did the treatment and all staff members who were in the area at the time of the alleged event. The firm needed to investigate and validate or refute the patients claims that he "screamed for help." To best set up the defense, the firm needed to see, photograph, and map the physical location, to coordinate witness testimony at trial. Digging still deeper, the firm needed to see the actual machine involved, which had been put into storage. They had to track all manuals and operating instructions and training materials, even going back to the manufacturer when they could not get some of the information at the facility. They needed to see if there been any product recalls, for instance, and whether any retrofits had not been done. Every detail had to be covered to find out if there was any validity to the claim, Corleto explains. "The attorney must conduct a thorough forensic investigation to find out exactly what did and did not happen," he explains. In this case, the plaintiff refused any kind of settlement, Corleto says. "The case went to trial, and the conclusion was a good defense verdict, with minimal damages awarded," he says. |
Sources
For more information on working with outside counsel, contact:
- Tony Corleto, JD, Corleto & Associates, 107 Mill Plain Road, Suite 200, Danbury, CT 06811. Telephone: (203) 790-7536. E-mail: [email protected].
- Stacy Gulick, JD, Garfunkel, Wild & Travis, 111 Great Neck Road, Suite 503, Great Neck, NY 11021. Telephone: (516) 393-2200.
- James M. Stewart, JD, Stewart & Stimmel, 1701 N. Market St., Suite 318, L.B. 18, Dallas, TX 75202. Telephone: (214) 752-7471. E-mail: [email protected].
- Linda Stimmel, JD, Stewart & Stimmel, 1701 N. Market St., Suite 318, L.B. 18, Dallas, TX 75202. Telephone: (214) 752-2648. E-mail: [email protected].
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