How do you choose a healthcare or FDA lawyer? How do you pick? There are so many firms. A lot of firms try to dazzle you with price. They try to throw a supposed freebie at you, and they pretend that you can just get the advice, the foundation of your multi-million dollar business, your dream for free in a couple of minutes. Well, that’s not true. Some firms, on the other hand, brand themselves is offering healthcare law, but they don’t have experience. Now, I’m not here to diss anybody, and I’m not going to call anybody fake.

Although I have to tell you, that pink flower, that’s fake. I can’t make claims about it, because I don’t want to incur the wrath of the FTC, but it sure looks good at night. Everything that glitters is not gold. What you really want is experience. You want people who’ve been doing this day in and day out. It’s not just about branding. It’s about being specialized. It’s about being focused. It’s about understanding the special language and the special rules that apply to a healthcare entity.

There’s so much to think about. People worry about HIPAA. There’s liability, risk management. There’s regulatory risk. There’s FTC exposure for your marketing claims. One of our clients, they made millions of dollars. They navigated everything successfully, but they were called to task by the district attorney for their marketing claims. The DA just made them public enemy number one and went after them with a vengeance. Everything they said they had to prove scientifically.

They end up spending lots and lots of money on lawyers to put together reams of paper to back up the things they said. You just don’t know. In other videos, they talk about the collateral attack. You think that you might get sued, that’s bad, but are you aware of the possible other exposures that you might have? That’s risk management. You want a healthcare attorney with experience, first. And second, you want a healthcare attorney that is a good issue spotter. Why? It’s the first thing we learned in law school.

Here’s a bunch of facts. Here’s a scenario. Tell me the issues. Anybody can throw a rule at you well, anti-kickback law prohibits this. Corporate practice of medicine law does that. The key is seeing whether your fact pattern raises that issue, looking for the collateral exposures, and then taking that rule and applying it to the situation, and last, coming up with a risk analysis. It’s more likely than not this is going to happen. It’s more likely than not that’s going to happen. This is the risky one.

Here’s the possible cost, and here’s the cost of compliance. You can’t be 100% compliant. You’ll never make it. It’s like running a one minute mile, unless you’re a robot, or doing the Rubik’s cube in three seconds. You can’t do it. Okay? I mean, I don’t think. There’s just so many things to comply with. In so many areas, there’s enforcement discretion. You might think you’ve got 100% right, but the regulators disagree. Do you want to get 100% right? I mean, some things you’ve got to be 100% right.

That’s called strict liability. If you run a red light, strict liability, the rule is you cannot run a red light. Do you have to comply with that red light or the stop sign? Yes, 100%. Much of healthcare laws is different. Like kickback law, for example, such and such is blatantly a kickback. But if you meet these criteria, you might quite very possibly fit into a safe harbor. It’s a fact-based analysis. It’s not always possible to be 100% compliant. I mean, look at HIPAA. HIPAA is so vast, so vast, and there’s a rule of reason.

Your compliance has to be tailored to your organization, your resources, and so on. Can anyone be 100% compliant on everything in HIPAA? Can you prevent breaches all the time? I mean, not possible, right? We had one client. She was a nurse. She left some patient folders in her car. She went to church. She didn’t lock her car. She trusted people. Someone took the folders. HIPAA breach for the nursing company. You can’t possibly foresee every scenario. And even if you could be 100% compliant, what’s the cost?

Corporate practice of medicine, some companies are very edgy. Why can’t I be like Uber? You’re not Uber. You don’t have a billion dollars in revenue. You can’t think like that. I mean, you can. You can be whatever kind of entrepreneur you want to be. We’ll work with you. We’re lawyers. We respect you, and we understand your thinking. But starting out, you don’t have a billion dollars in revenue. What’s the cost? You have to have some common sense.

You have to titrate compliance and the cost of compliance. You have to have a risk-based analysis, and you need legal advice that takes into account risk. Don’t be seduced by fancy promises or get it for free or people that don’t have experience. I mean, everyone’s entitled to have a shot at the market, but look for someone with experience, look for someone that gives you good issue spotting, and look for a healthcare counsel that knows how to talk to you about risk. We hope to work with you soon.

We’ve helped so many clients navigate this industry. I’m Michael H. Cohen, Founding Attorney, Cohen Healthcare Law Group. It’s great to talk to you and we hope to talk to you again soon.