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updated 7:37 PM PST, Feb 9, 2016

Hart Wagner Helps Clients Avoid Costly Legal Actions

BY STUART WATSON

Court experience helps legal firm anticipate potential problems for clients and prevent expensive litigation.

BY STUART WATSON

Court experience helps legal firm anticipate potential problems for clients and prevent expensive litigation

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Aaron Potter, partner, is experienced in helping medical companies navigate the nuances of contracts and privacy issues.

Hart Wagner LLP is a leading litigation firm in Oregon. By taking an average of 20 cases to trial every year, experience creates skill for its 35 attorneys. However, litigating disputes should be the path of last resort, if it can be avoided.

“As a result of our unmatched courtroom and litigation experience, we are uniquely positioned to identify those issues that most often give rise to expensive litigation,” says Gordon Welborn, managing partner for Hart Wagner. “We can do much more than litigation.”

Welborn says the firm can offer business and medical clients proactive alternatives to avoid or minimize the potential for costly legal disputes.

Given Hart Wagner’s involvement with the medical community and the insurance companies that protect it, Portland-based partner Karen O’Kasey cites the value in an ounce of prevention.

“It’s pennywise and pound foolish to not spend a little money up front to prevent a huge expense down the road,” she says.

Carmel Carrasco, clinic manager for Head & Neck Surgical Associates in Northwest Portland, has Aaron Potter, a Hart Wagner partner, on speed dial.

“We have Aaron review almost every contract we receive,” she says. “It gives me peace of mind that he is protecting our interests but also has saved us thousands of dollars.”

Potter, who also leads Hart Wagner’s efforts on privacy and security issues, cites four ways medical clinics can avoid costly legal issues.

1. Clear and consistent employment policies

Hiring is easy. Firing is hard. “People run into trouble when they have insufficient employment policies, a lack of good documentation, and no process,” Potter says. “It leaves you open to potential claims.”

Carrasco, at Head & Neck Surgical, says Hart Wagner keeps her current on employment law. Hart Wagner recently helped Head & Neck Surgical update its employee handbook to reflect its expectations and policies for employees.

“We have almost 40 staff members, so it’s great to have someone keeping us current on what to put in employee files,” Carrasco says.

“If I need to terminate an employee, Hart Wagner reviews our documentation and advises me on the correct procedures. Hart Wagner helps us establish a defensible position for our decisions.”

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The physicians of Head & Neck Surgical Associates turn first to Hart Wagner LLP for guidance on policies and contracts to prevent costly future legal battles.

2. Expect the unexpected in contracting

Just as with personal relationships, Potter says, business relationships can go sideways — or south.

“There are a lot of things that people don’t think about until it happens,” he says. “Part of our job is to raise these issues on the front end, so you can negotiate the most favorable terms to address problems or disputes, should they arise.”

In group business contracts, for example, the separation of one or more people from the business has financial implications.

“If you’re bringing someone into the practice, you want assurances about what happens if they develop a good patient base, then decide they want to leave and open an office across the street,” Potter says.

Hart Wagner frequently encounters clients who want to terminate contracts that didn’t include escape clauses except for very technical nonperformance. Hart Wagner can help clients negotiate contracts with more flexible termination provisions.

“Another important issue with vendor contracts is transfer of risk,” Potter says. “The vendor may try to transfer liability to the buyer, when that risk is in the control of the vendor.”

Carrasco at Head & Neck Surgical recalls a purchase agreement for a $14,000 surgical scope in which the vendor’s agreement tried to hold the clinic responsible for any shipping damage.

“That was just one of the unfavorable provisions Aaron helped us remove,” Carrasco says.

To prevent costly contract disputes, Potter says, engage Hart Wagner to “ensure contract language that fits your needs and expectations.”

3. Manage conversion to electronic medical records

As the medical community moves toward digital files, providers face a welter of questions. Where to store data? Will systems work together? Digitize everything or keep a hard copy? What protections are included for improper disclosure of patient information?

Vendors generally try to limit their liability exposure, often capping damages to the amount of license fees paid by the provider. These artificial limits, however, are often open to negotiation.

Potter says such a complex and critical decision also involves planning for the inevitable shifts in technology. When a clinic decides to change vendors, management needs assurance that they can terminate a contract, and that they can easily move patient data to its new electronic system.

“What if you get the data, but it can’t be efficiently imported into the new platform?” Potter says. “Do you pay someone to manually enter it? It can get very expensive.”

He says Hart Wagner can assist with each aspect of a migration to electronic records, from defining the electronic record to negotiating software licensure contracts and privacy policies.

4. Protect patient privacy

As electronic patient data proliferates, patients have grown increasingly concerned about disclosure. Potter says Hart Wagner can provide managers of clinical records the tools they need to ensure data security.

It starts with understanding who has a legitimate right to patient information. It extends to developing policies that limit access and transfer of data. And it includes planning to minimize the possibility of inadvertent disclosure.

“Hart Wagner can also assist you with any breach notification responsibilities and help you through a government inquiry,” Potter says.

By staying current on major laws such as the Affordable Care Act and Health Insurance Portability and Accountability Act (HIPAA), Hart Wagner can help clinical clients comply by adopting secure software and policies for privacy and encryption of data.

“If you don’t properly protect patient information, you can incur penalties that can reach $50,000 per violation, and potentially $1.5 million or more annually,” Potter says.

Carrasco of Head & Neck Surgical says they recently faced a false accusation of data breach.

“Hart Wagner helped us successfully resolve it,” she says. “A small accusation can turn into a costly situation in a heartbeat.”

Carrasco is quick to applaud the high level of “preventive help” her clinic gets from Hart Wagner.

“You’ve got to have someone on your side, right?”

Hart Wagner LLP: hartwagner.com
Head & Neck Surgical Associates:
head-neck.com

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