It's Monday morning and you have just arrived at your office in the hospital. You check your calendar and confirm that you "only" have four appointments scheduled so you figure that it will be a productive day in tackling that lingering paperwork on your desk. Unfortunately, you are wrong. Before the morning is over you learn that:

A patient tried to jump out of a window over the weekend (and you were not notified);
One of the hospital administrators has sent a proposed contract to you for review that involves a physician leasing space for his private office in the hospital with a note for you to review the contract for legal sufficiency but not to worry about the business issues;
A new lawsuit has been filed against the hospital and the Chief of the OB/GYN department that alleges the physician was negligent in the delivery of the child, that the hospital has lost the medical records and that the hospital is responsible for the injury to the child because this is the sixth malpractice case filed against this physician within the last three years; and
The union (with whom the hospital has been negotiating a new collective bargaining agreement for four months) has rejected the hospital's final offer and has tendered a 10-day notice of its intention to strike.

Welcome to the world of hospital in-house general counsel.

The role of an in-house general counsel varies depending upon the needs of the organization and the skills of the individual. However, it is fair to say that certain roles and functions are nearly universal as illustrated by the four events outlined above.

The Janitor
In this job, in-house counsel is forced to clean up a mess that has already been made by someone else. When a patient attempts to commit suicide, there are many legal issues that need to be confronted. There are governmental agencies (both state and federal) and accrediting bodies that may need to be notified within a certain number of days. There are state and federal (under HIPAA) privacy considerations that will dictate how, and what, if anything, the hospital can say about the incident to the media. There are risk management and patient safety issues that require the hospital to consider the disclosure of any failures of the hospital or its staff in the treatment of the patient that may have caused or contributed to the occurrence of the incident. There are investigative confidentiality issues that dictate how an investigation is conducted in order to ensure that the results of that investigation are confidential and protected from discovery.

Addressing each of these issues is difficult and time-consuming. That task is made substantially harder when counsel is not made aware of an incident at the earliest opportunity and, instead of being able to outline the steps that the hospital needs to take, is forced to "clean up" these issues as a result of actions that have already occurred without the benefit of legal advice.

The Teacher
Policies are written, speeches given and counsel is offered, yet, all too often, the lessons intended are not learned and counsel is required to educate those who are in the operations setting about what can, and cannot, be done. In the second scenario given, if the hospital is a tax-exempt organization with tax-exempt bonds outstanding, there are limitations on the amount of private use (called "bad space") that can occur with respect to the facilities that are subject to the tax-exempt debt. Violation of these restrictions can lead to the determination by the Internal Revenue Service that the interest on the bonds is no longer exempt from taxation. The problem in this scenario then becomes a practical one, i.e., undoing the proposed deal with the physician if it cannot be structured in an appropriate manner to comply with the restrictions in the law.

Other issues arise from this scenario as well. Counsel cannot ignore the business issues in a contractual arrangement between a hospital and a physician. The business issues define the legal issues in that context. Relationships between hospitals and physicians are highly regulated by federal law. Unless properly structured, a seemingly innocuous arrangement may violate the antikickback statute, the Self-Referral Statute (or "Stark Law") as well as certain provisions of the Internal Revenue Code concerning private inurement or private benefit. In-house counsel need to be aware that informing administration and physicians of these concerns is an ongoing task that requires constant attention.

The Policeman
There are certain things that hospitals generally do not want to do. One of these is to upset or lose a physician on its medical staff who is in a leadership role or who admits a high volume of patients. The reason for this is clear, i.e., physicians admit patients, not hospitals, and a hospital without patients is simply a building. However, there are times when a hospital has no choice but to upset or lose a physician and it is usually the role of counsel to be sure that the hospital makes that hard decision.

The contracting scenario discussed above presents an example of when the hospital may have no choice but to enforce a decision that will be displeasing to an important physician. The malpractice suit scenario also illustrates this point. Hospitals have a responsibility to verify the credentials of physicians who practice at the hospital. One of the purposes of this requirement is to ensure that the physicians are appropriately educated and trained and that they can provide safe care to patients. Where a hospital has knowledge that a physician may not be providing safe care to patients, it has a responsibility to inquire into that matter. One method by which hospitals gain such knowledge is through querying the National Practitioner Data Bank, which provides hospitals with information about any judgments or settlements paid on behalf of, as well as discipline imposed on, a physician. If it determines that patients are at risk from the physician's care, then the hospital may have a responsibility to restrict that physician's practice at the hospital until it can be determined that the physician is not a danger to patients.

The Fireman
In-house counsel are often called upon to put out fires, meaning that they effectively have to deal with an issue immediately and prevent it from causing any damage. The last scenario given presents a possible example of this. The adverse consequences of a strike by employees of a hospital are huge. Unlike other industries, if a union in a hospital environment was able to have its members conduct a strike without prior notice, the lives of patients would be at risk. That is why the law requires that unions in a hospital give a 10-day notice of their intention to strike. This allows a hospital time to prepare for a strike by lining up replacement workers, discharging and/or transferring patients as appropriate, restricting elective admissions, contacting public safety agencies to establish where picketing can legally take place and to ensure the peace, as well as continuing to engage in bargaining in order to avert a strike altogether.

In-house counsel is typically in the middle of these preparations. Counsel may be involved directly in the bargaining of the contract. He/she should be engaged in reviewing the agreement with the temporary staffing agencies involved to ensure that the hospital has a firm understanding of the responsibilities of the agency to provide insurance coverage for its staff and of the true cost of the engagement. Counsel should also be involved in discussions with public safety officials to establish the hospital's perimeter and to ensure that the public safety officials have an understanding of what the labor laws allow to occur within that perimeter. If these matters are not handled expeditiously, then the availability of agencies and officials, as well as the ability to contain the damage, could be lost.

Conclusion
In-house counsel wear many hats and play many roles, all of which are essential to the well-being of a hospital or hospital system. Not all hospitals are able, or choose, to have counsel inside the hospital. Regardless, the functions of counsel remain the same and need to be available to hospitals. There will always be messes to be cleaned up, lessons to be taught, lines to be drawn and fires to be put out, and counsel familiar with the hospital environment are typically best suited to handle those responsibilities.