Healthcare Dispute Resolution
We represent our healthcare and life sciences clients through all stages of dispute resolution.
When Alternative Dispute Resolution is Helpful
Oftentimes, clients may think or feel they have a claim, yet be unprepared for the dangers, costs, emotional expense, and sheer length of pursuing a legal claim through the courts.
We know that litigation can be exhausting. When necessary, we are prepared to vigorously defend our clients’ interests through the legal system.
Most often, however, these claims and disputes get resolved before they reach the judge or jury.
Our goal is to mediate, negotiate and help resolve disputes before they mature into nasty lawsuits. This includes settling claims advantageously to our clients, through settlement agreements and other written releases.
Our experience litigating business disputes in court teaches us ways to reduce potential legal costs down the road by inserting appropriate contract provisions where possible at the outset. We also know how to negotiate from strength, and how interpret contracts so as to evaluate our clients’ ability to extricate themselves from perilous conflicts.
For example, we can analyze and review non-competition, non-solicitation, and trade secrets clauses to ascertain the potential risk of exposure and whether clients can profitably leave existing arrangements in light of potential liabilities. We can help clients manage the risk of litigation through sharp analysis and wise strategy.
Often, disputes arise between two people who once started the venture together, as friends.
Prior to any dispute resolution process, our healthcare lawyers will conduct a thorough analysis of the potential claims, counterclaims, and likely options. We have expertise in corporate law as well as healthcare law. For example, we will go in depth into options such as removing a director, firing an officer, liquidating a partnership, or triggering buy/sell provisions with respect to a shareholder. We can understand, explore, and explain the possible pathways to a client, whether they involve interests as a shareholder, director, officer, or partner in a venture.
Healthcare arbitration can be used to resolve disputes such as:
- Business disputes, such as those that arise during Mergers & Acquisitions (M&A) of healthcare practices.
- Contract disputes between healthcare organizations and vendors.
- Disputes involving anti-kickback and fee-splitting issues.
- Disputes involving data breaches, business associate obligations, and privacy and security issues.
- Disputes involving marketing claims, unfair business competition, and false advertising.
- Employer/employee disputes, whether the employer is a hospital, healthcare facility, lab, medical group, or physician practice, and including wrongful termination.
- Personal injury disputes in the healthcare arena.
- Products liability issues involving medical devices.
- Real estate disputes among healthcare industry players.
- Reimbursement disputes between commercial insurers and healthcare providers over claims.
- Trade secret, confidentiality, and intellectual property disputes, often in the employment context.
The healthcare arbitrator must have deep knowledge of relevant healthcare law.
Our healthcare and life sciences lawyers can bring industry knowledge to bear in representing clients in the healthcare arbitration process, and also can serve as healthcare arbitrators.
Mediation offers a kinder, gentler way to resolve healthcare disputes, in which the parties can sit before a neutral arbiter of the dispute and can tackle the disagreements that underlie their legal claims.
Depending on the situation, the healthcare mediator might recommend monetary compensation, dissolution of a shared venture, or other options.
Our healthcare lawyers can represent clients in mediation; and can also serve as healthcare mediators themselves when called to mediate business and healthcare disputes.
Healthcare mediation can resolve similar types of claims to those addressed by healthcare arbitration. A typical dispute resolution clause in a healthcare agreement can, for example, including language such as this:
Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, before one (1) arbitrator.
The arbitration shall be administered by AHLA Alternative Dispute Resolution Service Rules of Procedure for Arbitration, in the above-mentioned city or county. Judgment on the award may be entered in any court having jurisdiction. This provision shall not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator.
Each Party has read and understood this Section (Arbitration) and understands that it thereby agrees to submit any claims arising out of this Agreement to binding arbitration, and that this dispute resolution provision constitutes a waiver of the Party’s right to a jury trial. HOWEVER, prior to either Party initiating Arbitration of any dispute, the Parties agree to attempt mediation of the dispute with a mutually agreeable trained mediator in the above-mentioned city or county. “Trained mediator” means a professional with actual training and experience in the field of Mediation and/or dispute resolution.
In other words, the parties mediate first, then arbitrate if they cannot resolve the dispute through arbitration.
If there is no contractual arbitration clause, then failed mediation may result in litigation. We typically recommend mediation as a way for our clients to get to the root of their disputes, and to try to get resolution in the most cost-effective, least intrusive way.
When healthcare litigation is necessary to vindicate the client’s interest, it is important to make credible claims that will be backed by the law and the evidence.
Healthcare litigation requires great skill, strength and fortitude, both by the lawyer and client.
Measuring Risk and Reward in Healthcare Disputes
In a recent healthcare dispute, we advised the client, we advised the client not only about the claims this client could file against the other party, but also about the potential counterclaims that could be filed against the client.
We told the client: “It’s difficult to weigh the risks. In either case, litigation can be expensive, protracted, draining, and nasty. Not everyone has the stomach for it. You have to make the ultimate decision.”
This particular client was fuming at the other side’s behavior, yet did not have strong claims, had a lot of exposure on the counterclaims, and, did not have the requisite “war chest” for a lawsuit. In such case, there were better options on the table. As the client’s zealous advocates, we wrote strong cease-and-desist and follow-up demand lawyers. Ultimately, we obtained a settlement that benefited the client, without draining the treasury.
In reflecting on relative risk and reward, sometimes the driving issue for the client is money—their financial resources and ability or willingness to commit to pursuing the matter through the courts. In other cases, they are concerned about time, or, reputation. We take all the variables into account as contested matters require special consideration of the client’s various needs.