Health Care Litigation

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.

Media Clips

Supreme Court won't weigh in on False Claims Act standards case

Modern Healthcare | February 22, 2021

This article on the U.S. Supreme Court’s denial of two petitions to clarify falsity thresholds under the False Claims Act quotes Washington, D.C. Government Investigations & White Collar Defense partner Adam Tarosky for his outlook on how the denial could make it harder for providers to dismiss health care cases.

The Changing Legal Landscape in a Time of Pandemic

ConvergenceRI | January 25, 2021

Providence Health Care partner Chris Browning contributed this article identifying the legal trends in a post-pandemic world surrounding health care delivery, transactions, and employment agreements, where rapid policy interventions have altered the prevailing landscape.

Hospitals See Opportunity, Risk in Ambulatory Surgery Centers

Modern Healthcare | January 25, 2021

This article on the increasing trend among hospitals to invest in ambulatory surgery centers extensively quotes Los Angeles Health Care partner Jill Gordon and Washington, D.C. Government Investigations & White-Collar Defense partner Adam Tarosky for their outlook on the Department of Health and Human Services’ updated anti-kickback statute, joint ventures among hospitals and ASCs, and a hospital’s ability to attract and retain top surgeons.

Lawsuit Says Missing NH In-Home Care Leads to Nursing Home Stays

Inside Health Policy | January 19, 2021

This article covers a class action complaint filed against the New Hampshire Department of Health & Human Services for failing to properly administer its CFI Medicaid waiver program. NP—together with NH Legal Assistance, Disability Rights Center-NH, and the AARP Foundation—filed the lawsuit in federal court on behalf of older adults and persons with disabilities enrolled in the CFI program. The NP team includes Complex Commercial Disputes partner Dan Deane, associate Kierstan Schultz and paralegal Sharon Willier, and Government Investigations & White-Collar Defense partner Mark Knights, all of Manchester.

Lawsuit Seeks Stop to Unnecessary Placements in NH Nursing Homes

Concord Monitor | January 12, 2021

Manchester Complex Commercial Disputes associate Kierstan Schultz is quoted in this article covering a class action complaint filed against the New Hampshire Department of Health & Human Services for failing to properly administer its CFI Medicaid waiver program. NP—together with NH Legal Assistance, Disability Rights Center-NH, and the AARP Foundation—filed the lawsuit in federal court on behalf of older adults and persons with disabilities enrolled in the CFI program. In addition to Kierstan, the NP team includes Complex Commercial Disputes partner Dan Deane, paralegal Sharon Willier, and Government Investigations & White Collar Defense partner Mark Knights, all of Manchester.

Medicaid waiver enrollees put at risk of unnecessary nursing home placement, lawsuit claims

McKnight’s Senior Living | January 12, 2021

The following article covers a class action complaint filed against the New Hampshire Department of Health & Human Services for failing to properly administer its CFI Medicaid waiver program. NP—together with NH Legal Assistance, Disability Rights Center-NH, and the AARP Foundation—filed the lawsuit in federal court on behalf of older adults and persons with disabilities enrolled in the CFI program.

The NP team includes Complex Commercial Disputes partner Dan Deane, associate Kierstan Schultz and paralegal Sharon Willier, and Government Investigations & White Collar Defense partner Mark Knights, all of Manchester.

New Hampshire Sued over 'Unnecessary' Nursing Facility Placements

Reuters Legal | January 11, 2021

Lawsuit Alleges New Hampshire Is Failing to Administer Program for Seniors, People with Disabilities

New Hampshire Public Radio | January 11, 2021

Lawsuit: State Shirking Responsibility for At-Home Care Services

New Hampshire Union Leader | January 11, 2021

New Hampshire House to Hold Hybrid Public Hearings on Bills

The Associated Press | January 11, 2021

5 lessons learned from HIPAA "Right of Access" fines this year

Modern Healthcare | November 25, 2020

In this article on the ramped-up enforcement actions by the U.S. Department of Health and Human Services’ Office for Civil Rights against health care providers, Chicago Health Care partner Valerie Montague discusses the importance for providers to train their staff and have a workflow in place.

Auction Set for LRGHealthcare's Assets

Laconia Daily Sun (N.H.) | November 06, 2020

This article covers an upcoming auction of LRGHealthcare’s assets as part of the nonprofit hospital operator’s Chapter 11 bankruptcy case, noting an initial $30 million bid from Concord Hospital. Financial Restructuring & Bankruptcy practice group leader and Boston partner Victor Milione, Boston Complex Commercial Disputes partner Morgan Nighan, New York City counsel Chris Desiderio and associate Chris Fong, both of the Financial Restructuring & Bankruptcy group, are representing LRGHealthcare, and the auction is scheduled for Dec. 16 at NP’s Manchester office.

LRGHealthcare Files for Bankruptcy, Concord Hospital May Acquire

Business NH magazine | October 20, 2020

The following article covers nonprofit hospital operator LRGHealthcare’s Chapter 11 bankruptcy filing as it seeks a buyer, mention Financial Restructuring & Bankruptcy practice group leader and Boston partner Victor Milione, Boston Complex Commercial Disputes partner Morgan Nighan, New York City counsel Chris Desiderio and associate Chris Fong, both of the Financial Restructuring & Bankruptcy group, for representing LRGHealthcare.

New Hampshire Hospital Group Seeks Bankruptcy Relief

Reuters Legal | October 19, 2020

LRGHealthcare to Sell Assets in Ch. 11

The Deal | October 19, 2020

The following article, covers nonprofit hospital operator LRGHealthcare’s Chapter 11 bankruptcy filing as it seeks a buyer, mention Financial Restructuring & Bankruptcy practice group leader and Boston partner Victor Milione, Boston Complex Commercial Disputes partner Morgan Nighan, New York City counsel Chris Desiderio and associate Chris Fong, both of the Financial Restructuring & Bankruptcy group, for representing LRGHealthcare.

Increased Nursing Home Data Reporting Could Bring ‘Perfect Storm’ of Federal Lawsuits

Skilled Nursing News | September 21, 2020

This article, covering takeaways from a recent webinar on long-term care facility infection control enforcement, extensively quotes Washington DC Government Investigations & White-Collar Defense partner Adam Tarosky, who provided several best practices for skilled nursing facilities amid increased government scrutiny.

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

Law.com 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.

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Contacts

Scott O'Connell

Partner
Past Chair, Litigation Department

soconnell@nixonpeabody.com

Phone: 617-345-1150

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