In a few years, you may not see one doctor in a small doctor’s office. They’re being snatched up by larger practices as Healthcare facilities are scrambling to merge, patient care is being pooled, and medical records are forced off of paper and into computers, says Judith A. Eisen, one of the top health care lawyers on Long Island and Partner/Director of Garfunkel Wild, P.C., which she joined in 1988.
“Everything is kind of in flux right now… Everybody is shifting around trying to figure out who they will align themselves with, and what it will mean to be in Accountable Care. And, so what we’re seeing is a lot of alliances being forged,” she said.
Currently, the government is offering money for healthcare systems to consolidate to become Accountable Care Organizations, and move toward electronic medical records (https://www.cms.gov/ACO/). “Their concept is that people will be better taken care of if care is coordinated better,” said Eisen. Other plusses: bigger is better when it comes to negotiating with managed care companies, not to mention the benefits of sharing expensive equipment and supplies. For the patient, this could mean fewer duplications of medical tests and procedures.
The downside? There is a lot of private health information flying through email. Traditionally, the healthcare community has lagged behind the rest of the world regarding electronics.
“The drawbacks are what you see in terms of privacy and security concerns: whereas everybody was used to protecting paper records in a certain way, and had gotten fairly adept at that — they hadn’t yet had appropriate mechanisms to protect electronic information. And if you think about all of the practitioners who are out there now – everybody’s walking around with their Blackberry, or iPhone, or whatever it is. And they’re communicating remotely with hospital IT systems; they may be accessing patient information remotely; patients might be emailing them, and they’re emailing the patients back; they might be emailing each other patient information; when a patient gets transferred, records might be sent electronically…” said Eisen. The records may or may not be hackable.
Another challenge: Getting time-strapped doctors to fumble through new electronic input systems, and it’s “a little like herding squirrels,” to get “doctors who are in their 50s to do something different from what they’ve been doing their whole lives,” said Eisen.
“But healthcare has become very competitive whereas it didn’t used to be” and institutions are scrambling ahead when sometimes it’s better to do your homework and get the right help in order to plan your next move instead of doing things that “don’t make sense and aren’t going to pay off,” she added.
No Recession in Health Care Law
No matter what the economy does, “healthcare never takes a vacation,” says Eisen.
Other trends? It used to be that hospitals got paid on a per diem basis for patients, now it’s one flat fee per disease. Translation: The longer you stay, the less a hospital makes. As a result, the upsurge continues in rehabilitation and long term care facilities. Traditional inpatient hospital services are shifting to more outpatient ambulatory services.
Also, with Medicare and Medicaid programs so expensive, officials are cracking down on healthcare fraud. More doctors and healthcare companies are in the hot seat for white collar crime and fraudulent billing.
“We have seen an astronomical increase in enforcement of healthcare fraud investigations,” Eisen said.
Some of the billing scams are increasingly creative. One of her more interesting cases involved a blood testing facility that bought people’s blood and sent it for phony tests discovered only when the hard-up subjects began showing signs of anemia from too much blood loss. “They discovered it because these people were literally being bled out,” she said.
St. Vincent’s Hospital, NYC
“As I’m sure you’re aware, healthcare policy and regulations are changing constantly, pretty much with every administration,” Eisen said.
In 2006, NY State’s Berger Commission issued a report recommending some downsizing and the closing of five metropolitan hospitals: St. Vincent’s Midtown Hospital, Cabrini Medical Center (Manhattan), Victory Memorial (Brooklyn), New York Westchester Square Medical Center (Bronx) and Parkway Hospital (Queens). Much of the brokering is falling to healthcare law firms. At the time of her interview with Networking® magazine, Eisen was in the midst of billion-dollar deals, one being the parsing of the bankrupt St. Vincent properties in an effort to keep the facilities alive and viable for the people of New York. For example, its cancer center will be taken over. Its large HIV center will be taken over by St. Lukes and Mt. Sinai and its gorgeous, sprawling mental health properties near Harrison will be taken over by St. Josephs in Yonkers, she said.
“We probably did 10 to 12 transactions of all sorts and sold them to existing healthcare providers generally,” she said.
As a member of the firm’s Health Care Practice Group and Finance Group, Eisen advises clients on business, regulatory, and transactional matters.
“I am, in part, a transactional attorney,” said Eisen. Garfunkel Wild is a general practice law firm specializing in the healthcare industry for the largest to smallest healthcare systems in the metropolitan area — from New York Presbyterian or North Shore, down to a sole practitioners’ office.
“There is literally not a hospital in the New York metropolitan area that we have not represented at some point or another,” she said.
Eisen’s Career Arc
It’s no mistake that Eisen chose to practice healthcare law for the past 23 years. For her, it was coming home. Before she headed back to law school, Eisen was a Columbia grad and pediatric nurse who loved kids and worked in one of the most heartbreaking areas of a hospital — tertiary care and neonatal intensive care — where “fascinating” breakthrough science tried to keep infants alive. She excelled at her job and was offered promotions, but when her own daughter was born, every lost baby became even more traumatic.
“When you have a child, you worry about what might happen to that child. And if, every day, you see the worst of the worst, you increase your worry that much more about your own child. But you also start to empathize with the parent as well, and it takes a real emotional toll on you…after a while, it really breaks your heart,” she said.
It drove her into risk management and malpractice, where she began working with lawyers. But after a while, she realized she wanted to take charge.
“Honestly I had spent the first part of my career working with doctors and taking orders from doctors and here I was now taking instruction from lawyers, and I decided that I had to become one or the other,” she said.
She chose to become a lawyer for the sake of her daughter. “It was the shorter route…I didn’t want to spend her entire childhood in medical school and residency…It ended up being a very happy choice.”
When Eisen headed to Hofstra Law School, however, she was a 31-year-old single, working mom, out of school for 10 years, competing against 20-something kids who had fresh test-taking experience. She was nervous, but she had a few advantages: she wasn’t concerned with the social scene, and she had the discipline to lock herself in a room, sometimes for six hours at a time, until she really learned the material. When she did well, she was able to get summer work at law firms.
Then she scored a job in Mergers and Acquisitions at a leading corporate law firm in Manhattan, Schulte Roth & Zabel.
“I definitely took a bump up in pay going from nurse to a lawyer,” Eisen laughed.
The job was interesting, but too impersonal. “It was kind of a feeling of just moving money around,” she said.
Then it was the late 1980s, and firms were offering lawyers huge amounts of money to become investment bankers. Eisen’s colleagues were jumping at the opportunity. But for Eisen, it was the call about a healthcare firm that to her was “the greatest opportunity in the world. It was still transactional but for an industry that I can relate to. It was a very happy combination for me,” she said.
You can imagine what it was like for her, something like a fish heading back to water… but this time, there were a whole new set of questions she’d have to learn the answers to, like what were the legal implications of pulling life support. Or, what do you do when a Jehovah Witness refuses a life saving blood transfusion and her heavy-hitting attorneys form a human chain around her bed? (The transfusion was forced by ex parte court order and police and security, but later overturned by the Court of Appeals for future cases.) For a person with a low boredom threshold, it was the perfect career choice. Each city, state and federal administration has its own ever-changing set of regulations. Healthcare is a “hot potato” topic for each politician. And then there are the introductions, merge suggestions, and, of course, the late-night panic calls the day before hospitals sign multimillion dollar contracts that are filled with pitfalls.
She rose to the top of her field. She went on to marry the firm’s Robert Andrew Wild in 1998. (When the couple argues, they accuse each other of “lawyer-ing” one another). And yet, she still keeps her nurse’s license, and locks herself in a conference room on occasion to concentrate with complicated material. (These days, however, with computers and cell phones buzzing, she says it’s a little more difficult to get away from it all.) Still, in 2011 she was featured in New York Super Lawyers metro edition and in 2006 she was honored by Touro Law Center as Public Interest Attorney of the Year.
Eisen also heads a ladies lunch group at the firm. She realizes that women in her profession are more timid about asking for promotions and discusses with the women how they bring unique strengths to law.
“As a general rule, in a softer way, they can be just as effective… A lot of lawyers tend to pound fists on the table; they tend not to be female. Females are cajoling, tend to use kid gloves, backed up with knowledge, facts, research. If you go in prepared, I think that’s a much better tool than intimidation,” she said acknowledging
that shooting from the hip and feigning false bravado isn’t always the most effective way to find a solution.
“If somebody is beating you over the head with a stick, you’re going to walk away feeling bad. But if you can do it in a gentle way, a lot of people on the other side of the transaction can walk away feeling good and not like they’ve been beaten up,” said Eisen, her hazel eyes grinning within her broad smile, set on her petite 5’1” runner’s frame. “It’s not in my personality to be a table banger. I’m not going to intimidate anybody.”
Her survival advice to other women? “If you’re looking for perfection in any one of the areas – whether it’s with your work, your spouse or your kids, or friends, forget about it. You will never be able to give 100 percent to any one of them, so let yourself off that hook.”