Health Care Litigation

We provide cost efficient and innovative representation to minimize institutional risk and disruption allowing focus to remain on patient care. We combine our trial-tested litigation and dispute resolution skills with deep industry knowledge.

Our approach

Health care is among the fastest growing industries in the U.S., and while advancements in treatments create new opportunities every day, growth does not come without challenges—economic stresses, increased scrutiny and government regulation have increased the risks facing health care providers.

Failure to navigate the risks properly can result in disruptive disputes and litigation. We understand the challenges faced by businesses in the regulated health care industry. And we know how to get clients back to business fast.

Our efficiency, knowledge of the industry and litigation experience are particularly valuable to clients who need appropriate and cost-efficient litigation results.

We assist clients with litigation involving many different aspects of health care at the local, state and national levels, including:

  • Medical staff issues
  • Privacy
  • qui tam claims
  • Medicare and Medicaid reimbursement
  • Managed care contracts
  • Certificates of need
  • Graduate medical education programs
  • Antitrust litigation
  • Enforcement or defense of restrictive covenants
  • Health Insurance Portability and Accountability Act (HIPAA) regulations

Who we work with

  • Hospitals and hospital networks, clinics and nursing homes
  • Physicians and home care providers
  • Fiscal intermediaries and insurers
  • Managed care organizations
  • Pharmaceutical firms

Recent experience

Class Actions
  • Representing hospital as coordinating counsel in the criminal, regulatory and civil actions arising from the infection of patients with Hepatitis-C, allegedly by a former employee. Obtained favorable ruling denying class certification for two proposed classes as lead defense counsel in a putative class action brought by a plaintiff who claimed to be one of 32 patients infected while undergoing medical procedures at the hospital.
  • Defending large hospital systems in a putative class action brought by current and/or former employees. The complaint alleges numerous causes of action, including but not limited to FLSA and RICO violations, violations of New York labor law, breach of contract, breach of fiduciary duty pursuant to ERISA and fraud.
  • Defending a rehabilitation center against claims initiated by a patient with dual diagnoses of mental health and traumatic brain injury, was expatriated to a facility outside of New York State because of an alleged inability of New York agencies to appropriately facilitate dual services.
  • Represented numerous hospital defendants in class action in New York State Supreme Court pertaining to allegedly excessive charges imposed for medical records copying.
  • Obtained favorable settlement for primary care, rehabilitation and senior services hospital network in an antitrust class action alleging price-fixing by hospitals in setting nurses compensation.
  • Obtained defense verdict for a regional health care organization after a seven-day jury trial regarding allegations of race and national origin discrimination, retaliation and deprivation of due process brought by a former general surgery resident who was not promoted.
Medicaid Reimbursement
  • Secured preliminary injunction as lead counsel for 10 hospital clients who sued the state of New Hampshire over more than $260 million in improper Medicaid reimbursement cuts
  • Representing New York-based nursing home in administrative litigation regarding significant Medicaid reimbursement issues; secured favorable determination of Administrative Law Judge
Health Care Facilities Construction-Related Disputes
  • Obtained successful settlement for large gastroenterology practice in mediation of claims against designer/builder for lost profits arising from failure of flooring system in ambulatory care center and medical offices built without requisite vapor barrier.
  • Representing a New York-based hospital in a lawsuit against its architect claiming negligence, professional malpractice and breach of contract after the architect’s design failed to conform with state and local building and life safety codes, resulting in costly delays and errors in the construction of the hospital’s expansion project.
Medical Staff Disputes
  • Secured landmark ruling for senior care facility and hospital in a medical staff dispute, where the New York Court of Appeals held that medical staff bylaws do not support a claim for breach of contract and damages.
  • Representing hospital in a lawsuit by a physician who raised allegations of intentional interference with prospective business advantage, violations of New York’s Human Rights Laws, civil conspiracy and defamation after his privileges were terminated following his departure.
  • Obtained favorable settlement for hospital and hospital network in breach of contract and unfair competition and fraud claims by an emergency room physician and his professional corporation in connection with the termination of an exclusive services agreement the physician practice had with the hospital.
Commercial Litigation
  • Secured dismissal of claims against a New York-based teaching hospital and its directors in an action brought by a relative of a deceased donor, who alleged that the terms of her relative’s charitable bequest to the resident nursing school had not been followed over the preceding decades. The Second Circuit upheld the decision.
  • Secured a defense verdict for a New York medical center in five of six claims brought by the operator of an adult home. Rejected claims included a demand for both compensatory and punitive damages, alleging the hospital destroyed the business while acting as temporary operator of the adult home at the request of the New York State Department of Health. The hospital is appealing the remaining conversion claim.
Administrative Hearings
  • We have handled a variety of administrative matters for our provider clients, including claims and appeals for Medicaid reimbursement, challenges to Medicaid audit findings, administrative appeals before state departments of health, Medicaid “Fair Hearings,” licensure appeals and judicial appeals of adverse administrative determinations (including Article 78 proceedings in New York State).
Graduate Medical Education
  • We have represented numerous academic medical centers and teaching hospitals in connection with litigation concerning graduate medical education, including actions to challenge administrative sanctions imposed on medical residency programs and the defense of actions brought by aggrieved medical residents.
Guardianship Proceedings
  • We have represented numerous health care providers in guardianship proceedings seeking court appointment or removal of guardians for patients or consumers.
Retention Hearings
  • We have represented medical center psychiatric departments in connection with proceedings commenced either by the hospital department or by the mentally ill patients they treat, who are in turn represented by Mental Hygiene Legal Services. While we handle all types of issues arising from retention hearings, we have particular experience representing clients in Due Process hearings held under New York’s Mental Hygiene Law, specifically involuntary retention, medication over the patient’s objection and assisted outpatient treatment.
Restoration Hearings
  • We have represented doctors, nurses and other licensed professionals before the Department of Education in connection with proceedings to restore a professional license. The restoration process is multi-faceted, and we have assisted professionals in filing applications, commencing and prosecuting an evidentiary hearing and presenting the case for restoration before the commission.

Aetna Blasts Conformis For Using Patient To Force Coverage

Law360 | July 24, 2020

Complex Commercial Disputes co-practice group leader and Boston partner Steve LaRose and Manchester associate Kierstan Schultz were mentioned in this article for representing Aetna in a suit regarding coverage for medical device manufacturer Conformis’ customized total knee implants.

COVID-19 GC Roundtable (podcast)

American Health Lawyers Association | April 01, 2020

In this podcast, Washington, D.C. Health Care counsel Sarah Swank speaks with three hospital general counsel on the front lines of the coronavirus pandemic.

AI in Healthcare – how to avoid fraud and abuse

AIMed | March 09, 2020

Washington, DC, Health Care counsel Sarah Swank wrote this contributed article analyzing how organizations can avoid fraud and abuse pitfalls as clinical AI services become more prevalent in the industry.

Hospitals lobby to delay DSH funding cuts as October 1 deadline looms

Crain’s New York | September 06, 2019

In this story, Litigation Department Head Scott O’Connell offers his perspective on new financial uncertainty for hospitals as an October deadline looms to avoid large cuts to federal funding for facilities that treat large numbers of Medicaid and uninsured patients.

GSK renews Zofran birth defect dismissal bid after Supreme Court ruling

Reuters Legal | June 04, 2019

This article mentions Boston Government Investigations and White Collar Defense partner Mark Seltzer for his representation of GlaxoSmithKline in an ongoing matter related to its anti-nausea medication Zofran.

NY health network mostly skirts white ex-worker's bias suit

Law360 | May 30, 2019

This article mentions Long Island Labor and Employment partner Chris Gegwich and associate Tony Dulgerian for their successful representation of Northwell Health in a discrimination suit.

Restrictive covenants and liquidated damage provisions: Ensuring enforceability to protect businesses and medical practices

New York Law Journal | May 14, 2019

Long Island Complex Commercial Disputes partners Dan Gibbons and Jim Weller co-wrote this contributed article analyzing the use of restrictive covenants in physician contracts.

Litigators of the Week Litigation Daily | April 04, 2019

Manchester Complex Commercial Disputes partner Scott O’Connell, head of the Litigation Department, is named one of the Litigators of the Week for securing an award of legal fees for his clients, a group of 26 New Hampshire hospitals who sued the Centers for Medicare and Medicaid Services. The litigation team also included Boston Complex Commercial Disputes associates Morgan Nighan and Kierstan Schultz.

Chinese biotech company pulls back suit over biased H-1B denials

Law360 | March 07, 2019

Manchester Complex Commercial Disputes associate Nate Warecki is quoted in this article discussing the positive outcome for his client, Chinese biotech firm Vcan, in a dispute with the U.S. Department of Homeland Security.

Hospital defeats deaf workers bias suit at 2nd Circuit

Law360 | February 28, 2019

Rochester Labor & Employment Counsel Marion Blankopf is mentioned in this article for her successful defense of Highland Hospital against a suit alleging violations of the Americans with Disabilities Act.

New Hampshire Hospitals Win Challenge to Medicaid Payment Rules

Reuters | April 04, 2018

Litigation department chair Scott O’Connell is quoted in this story involving Nixon Peabody’s representation of an association of New Hampshire hospitals in its successful appeal against the U.S. Centers for Medicare & Medicaid Services. The lawsuit relates to a policy change about how Medicaid payment are calculated.

NH hospitals fight to keep CMS suit win at 1st Circ.

Law360 | November 21, 2017

This article mentions Boston commercial litigation associate Morgan Nighan and Manchester commercial litigation partner and litigation department head Scott O’Connell for representing New Hampshire hospitals in an ongoing dispute involving a Centers for Medicare & Medicaid services reimbursement policy. Scott is also quoted.

Children’s health org backs hospitals in 1st Circ. CMS row

Law360 | November 16, 2017

This article quotes Manchester commercial litigation partner and litigation department head Scott O’Connell and mentions him and Boston commercial litigation associate Morgan Nighan as counsel representing New Hampshire hospitals in a dispute involving a Centers for Medicare & Medicaid services reimbursement policy.

  • U.S. News/Best Lawyers “Best Law Firms” 2020 ranked as National Tier One in: Appellate Practice, Commercial Litigation, Corporate Law, Employment Law—Management, Energy Law, Franchise Law, Health Care Law, Labor Law—Management, Litigation—Construction, Litigation—Labor & Employment, Litigation—Real Estate, Mass Tort Litigation/Class Actions—Defendants, Patent Law, Public Finance Law, Real Estate Law, Securities Regulation, Tax Law
  • In addition, many Nixon Peabody practices received U.S. News/Best Lawyers Tier 1 rankings at the regional level in the following geographies: Albany, NY; Boston; Buffalo; Chicago; Long Island; Los Angeles; Manchester, NH; New York City; Providence, RI; Rochester, NY; San Francisco; and Washington, DC.
  • U.S. News/Best Lawyers has named Nixon Peabody “Law Firm of the Year” in Health Care Law in 2016
  • BTI Litigation Outlook 2016: Among the top three “powerhouse” firms for product liability litigation
  • Chambers USA/Global
  • Legal 500
  • Benchmark: Litigation/Appellate
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