Health Care

Carlton Fields Jorden Burt represents the full range of health care industry participants. On behalf of industry-leading clients across the country, we provide comprehensive legal services related to health care entities. Our scope of services include compliance, administrative, regulatory, transactions, and litigation.

Representative Clients 

  • Hospitals and health systems 
  • Health care clinics 
  • Adult care facilities 
  • Hospices 
  • Ambulatory surgery centers 
  • Physicians, physician groups, and other allied health professionals 
  • Oncology Centers 
  • Free-Standing Cardiac Catheterization Labs 
  • Mental Health Centers 
  • Addiction Treatment Centers 
  • Pharmaceutical and medical device manufacturers 
  • Universities 
  • Medical and hospital associations 
  • Health Insurance companies

Representative Matters

Litigation 

  • Represented health care providers throughout Florida trial and appellate courts in more than 450 cases related to Amendment 7 issues, including providers’ confidential peer review, credentialing, quality, and risk management 
  • Obtained reversal of trial court order certifying class action against hospital challenging its billing and collections practices 
  • Represented hospital in litigation and appellate proceedings resulting in decision that Florida hospitals and ambulatory surgery centers and their governing bodies are immune from injunctive relief and liability for claims that arise out of the appointment or reappointment of members of the medical staff, absent a properly pled allegation of intentional fraud 
  • Represented hospitals in internal peer review proceedings and resulting litigation, which included successfully representing hospital in litigation and appellate proceedings in lawsuit brought by physicians alleging racial discrimination in medical staff appointment process 
  • Represented hospitals in medical malpractice lawsuits, including a defense verdict in a three-week jury trial of a $50 million medical malpractice claim arising out of paraplegia following spinal surgery

Regulatory/Transactional 

  • Represented hospital-based ambulatory surgery centers in a roll-up with a public company 
  • Provided legal advice and counseling regarding formation of a hospital network to better compete given health care reform 
  • Representing two public hospitals in possible long-term lease 
  • Represented health care providers in investigations by the U.S. Department of Health and Human Services Office for Civil Rights related to HIPAA and patient privacy complaints brought by former patients and other consumers 
  • Assisted hospital with purchase of real estate and expansion of health care facilities 
  • Counseled hospitals on possible joint venture to expand provision of critical services

Services

Administrative Law, Legislation, and Lobbying

The firm’s government affairs and lobbying team advocates on behalf of health care providers, associations, insurers, and managed care companies before the Florida Legislature, Cabinet and executive agencies, including the Office of Insurance Regulation, the Florida Attorney General’s office, the Florida Department of Health and the Agency for Health Care Administration.

Antitrust

We represent businesses and individuals in civil and criminal antitrust cases in all courts and administrative agencies. Our representation includes advising and counseling health care clients on prospective mergers and acquisitions, government filings, and other business activities affected by antitrust and trade regulation laws. We also conduct compliance and training programs and seminars for health care clients and their employees to guide them in their day-to-day activities.

Appeals and Trial Support: Health Care/Medical Malpractice

Carlton Fields Jorden Burt has extensive experience representing hospitals, nursing homes, other health care facilities, and doctors on appeal. We handle cases that raise significant issues, including the constitutionality of the statutory caps on non-economic damages and the application of medical malpractice arbitration statutes, as well as the discoverability of documents under Amendment 7 of the Florida Constitution, The Patients Right to Know Act.

In addition, we offer trial support that includes preparing and arguing major pretrial motions and directed verdict motions, as well as preparing verdict forms and jury instructions and presenting argument in their support. Our representation often continues from trial support through appeal.

Representative Medical Malpractice Appellate Matters 

  • Simon v. Maldonado, 65 So. 3d 8 (Fla. 3d DCA 2011). Reversing order granting new trial after defense verdict in medical malpractice case finding no error in jury selection. The Court also affirmed rulings concerning evidentiary issues and the inclusion of a subsequent treating physician on the verdict form as a nonparty defendant. 
  • Brandon Health Care Associates v. Hartline, 76 So. 3d 296 (Fla. 2d DCA Dec. 29, 2011). Obtained certiorari relief quashing trial court order that required confidential disclosure of sensitive commercial information related to pending sale of the petitioning health care corporations. 
  • McKesson Medication Mgmt., LLC v. Slavin, 75 So. 3d 308 (Fla. 3d DCA 2011). Obtained reversal of $6 million judgment against hospital pharmacy operator, with entry of judgment in operator’s favor, where injured patient sued operator for negligently training medical staff. 
  • Raphael v. Shecter, M.D. & Emergency Physician Enterprises, Inc., 18 So. 3d 1152 (Fla. 4th DCA 2009). Represented an emergency room doctor in post-trial motions and successfully avoided constitutional challenges to statutory caps to non-economic damages awards applicable in medical negligence claims. The trial court entered judgment reducing a $10.3 million verdict to $800,000. The 4th DCA found it unconstitutional to retroactively apply changes and a petition for review is now pending before the Florida Supreme Court. (Case No. SC09 2153). 
  • Rojas v. Stein, 2 So. 3d 268 (Fla. 2d DCA 2008). Represented an obstetrician in post-trial motions, obtained a directed verdict on two of three claims, and enforced statute authorizing payment of future damages over plaintiff’s life expectancy. Plaintiffs appealed and the appellate court upheld the lower court’s decision. 
  • Leon Medical Centers, Inc. v. Martell, 927 So. 2d 1103 (Fla. 3d DCA 2008). Obtained a reversal of a trial court’s order compelling arbitration without damage limitations set forth in section 766.207, where medical negligence defendant offered to admit liability and to arbitrate damages under section 766.106(3)(b)3, Florida Statutes. This decision is significant because it resolved a potential ambiguity between Florida’s two medical malpractice arbitration statutes. 
  • Florida Birth-Related Neurological Injury Compensation Ass'n v. Fla. Div. of Adm. Hearings, 948 So. 2d 705 (Fla. 2d DCA 2007). Defended an appeal of an administrative order, brought by Florida's Birth-Related Neurological Injury Compensation Association against NICA claimant. 
  • Florida Institute for Neurologic Rehabilitation v. Marshall, 943 So. 2d 976 (Fla. 2d DCA 2006). Affirmed a jury verdict in wrongful death action. 
  • Eagleman, M.D. v. Korzeniowski, 924 So. 2d 855 (Fla. 4th DCA 2006). The court affirmed a medical malpractice judgment against a doctor, holding errors at trial were not properly preserved for appeal. 
  • Lifesouth Community Blood Centers, Inc. v. Fitchner, 970 So. 2d 379 (Fla. 1st DCA 2007). Obtained a reversal of an $8 million jury verdict in a negligence claim against the blood center regarding infected blood given to the plaintiff, with directions for a new trial. Case was subsequently settled.

Other Representative Health Care Appellate Matters 

  • Represented numerous hospitals in interlocutory appeals to our various district courts and the Florida Supreme Court regarding the applicability, scope and constitutionality of Amendment 7, The Patients Right To Know Act. The cases include: Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008); West Fla. Reg'l Med. Center v. See, 18 So. 3d 676 (Fla. 1st DCA 2009), 54 So.3d 975(Fla. 2010); Telasco v. Brzostowicki, 26 So. 3d 594 (Fla. 3d DCA 2010); Columbia Hospital Corp. of South Broward v. Fain, 16 So. 3d 236 (Fla. 4th DCA 2009), 34 So. 3d 1 (Fla. 2010); Neil v. Surgical Park Center, Ltd., 36 So. 3d 107 (Fla. 3d DCA 2010); Surgical Park Center, Ltd. v. Neil, 36 So. 3d 109 (Fla. 3d DCA 2010). 
  • Manor Care, Inc. v. Keith, 147 N.M. 209, 218 P. 3d 1257 (NMCA 2009). In this appeal of a $53.2 million judgment to the New Mexico Court of Appeals, we obtained a reversal and a new trial for HCR Manor Care. The verdict included $50 million in punitive damages against Manor Care's parent company, but the appellate court agreed that the trial court erred by entering a pre-trial finding that the parent company employed the staff who worked at a subsidiary's nursing home. The case has proceeded to the New Mexico Supreme Court. 
  • Lawnwood Medical Center, Inc. v. Seeger, 990 So. 2d 503 (Fla. 2008). For-profit corporation that owned and operated a hospital brought a declaratory judgment action, seeking to have hospital governance law declared constitutional. 
  • Columbia/JFK v. Spunberg, 784 So. 2d 541 (Fla. 4th DCA 2001). We obtained reversal of a $20 million judgment, which included $18.5 million in punitive damages, against our client in a medical staff privileges dispute. 
  • Humana Health Ins. Co. of Fla. v. Chipps, 802 So. 2d 492 (Fla. 4th DCA 2001). We obtained reversal of a $79.5 million judgment, which included $78 million in punitive damages, against PPO insurer client, for failure to authorize certain medical and speech therapy services. 
  • McCall v. United States, SC11-1148. Prepared amicus brief to Florida Supreme Court in challenge to Florida’s statutory cap on noneconomic damages in medical malpractice claims, with a focus on Florida’s constitutional right of access to courts.

Representative Medical Device/Pharmaceutical Appellate Matters 

  • Fields v. Warner - Lambert Co., 902 So. 2d 801 (Fla. 2d DCA 2005) (PCA). We represented a pharmaceutical manufacturer in an appeal of a summary judgment entered in a failure to warn case/product labeling case. 
  • Sharp v. Leichus, 952 So. 2d 555 (Fla. 1st DCA 2007). This case affirmed summary judgment for a brand-name drug manufacturer, where a plaintiff asserted fraud and misrepresentation claims against the manufacturer, even though plaintiff was injured by another manufacturer’s generic version of that drug. 
  • Vincent v. C.R. Bard, Inc., 944 So. 2d 1083 (Fla. 2d DCA 2006). This case affirmed summary judgment in a medical device product defect claim case; rejecting alternative liability/market share liability theories. 
  • H.C.Y. v. Mentor Corp., 915 So. 2d 1206 (Fla. 2d DCA 2005) (PCA). We represented a medical device manufacturer in an appeal of a summary judgment entered in a product defect/negligent failure to warn case.

Representative Appellate Trial Support Matters 

  • We provide statewide litigation support and have represented numerous hospitals at the trial court level regarding discovery disputes over the applicability, scope and constitutionality of Amendment 7, The Patients Right To Know Act. 
  • Gervato v. University of Florida Bd. Of Trustees, 01-2008 CA 006413 K, (Fla. 8th Jud. Cir. Ct., 2001) We provide statewide litigation support and have represented numerous hospitals at the trial court level with regard to discovery disputes regarding the applicability, scope and constitutionality of Amendment 7, The Patients Right To Know Act. 
  • Landis v. University of Miami School of Medicine, 04 16095 (Fla. 11th Jud. Cir., 2007). We represented a medical services provider after an adverse verdict of $16 million, including $10 million in non-economic damages. In post-trial motions, we defended the constitutional challenges to statutory non-economic damages caps under section 766.118, Florida Statutes (including arguments raised by ATLA as amicus). The case settled in mediation conducted after post-trial motions argument. 
  • VanHoudt v. Hastings, 04-26912 CA 15 (Fla. 11th Jud. Cir., 2007). We represented a dentist after an adverse verdict of $4 million in a dental malpractice case. We prepared post-trial motions defending against constitutional challenges to medical malpractice damages caps. The case settled before appeal. 
  • Lucia v. Memorial Hospital 03-7481 (Fla. 13th Jud. Cir., 2007) (settled while on appeal). We represented a hospital in post-trial motions and in post-trial mediation in $30 million verdict against hospital and several treating doctors, in medical negligence claim based on complications that developed after cosmetic surgery. The case involved challenges to the verdict based on causation, improper application of Good Samaritan statute, juror challenges, and privilege issues. 
  • Leon F. Cohn, M.D., P.A. v. Visual Health & Surgical Center, Inc., 98-15023 (Fla. 17th Jud. Cir., 2009). We represented a vision health care facility in a breach of contract action and successfully limited the testimony of the plaintiff's expert on future damages.

Certificate of Need

We handle Certificate of Need filings, including projects for new acute care hospitals, hospice programs, hospice inpatient facilities, nursing homes, comprehensive medical rehab beds, psychiatric and substance abuse beds (child and adult), long-term acute care hospitals, and transplant services.

Compliance

We advise providers on important elements of effective health care compliance programs that respond to guidelines promulgated by governmental agencies. These programs provide safeguards that ensure applicable federal and state regulations are met, improve the quality of patient care, create a centralized location for important information, demonstrate a commitment to legal and ethical conduct, establish procedures for reporting and investigating improper conduct, and reduce exposure to legal sanctions. We also handle Medicare and Medicaid reimbursement disputes with federal and state agencies, and address compliance issues relating to EMTALA, HIPAA, Stark, and Anti-Kickback Laws. Two of our attorneys are certified by the Health Care Compliance Association.

Representative Matters 

  • Advised multiple hospitals regarding Stark and anti-kickback rule compliance 
  • Developed gainsharing models 
  • Conducted internal investigations regarding compliance issues for multiple hospitals 
  • Developed RVU-based physician compensation programs 
  • Advised clients on corporate compliance guidelines and assisted with developing same 
  • Advised physician practices (both freestanding and hospital-owned) on compliance matters, including fraud and abuse issues and prevention 
  • Helped clients file for Medicaid and Medicare certification and compliance 
  • Advised providers on effective health care compliance programs in response to OIG guidelines 
  • Represented multiple hospitals in OIG and U.S. Department of Justice investigations

Corporate Governance

We assist clients with a wide range of corporate governance issues, focusing on the Board of Directors. Our work includes representing various standing and special committees, and individual directors. Our services include drafting and reviewing minutes, completing all State of Florida annual filings, and maintaining corporate records books. Additionally, firm members sit on the boards of directors of several not-profit organizations, including hospitals.

FDA/Clinical Research Trials

We prepare clinical trial agreements, informed consents, investigator agreements, and related transaction documents.

Government Relations

Key matters

  • Drafted and secured passage of general bill enabling addition of hospital beds in high-growth counties by legislative fiat (notwithstanding Certificate of Need requirements) 
  • Drafted and secured passage of local bill creating county hospital district 
  • Drafted portions of bill regarding substantial Certificate of Need reform, and helped secure its passage

HIPAA, Data Privacy, and Security

We assist health care providers with state privacy law analysis and compliance in all 50 states, and with privacy law questions concerning certain international laws. Our attorneys are also knowledgeable regarding the privacy and security standards used in various industries.

In addition to providing assistance with HIPAA compliance by implementing policies and procedures concerning privacy and security, we have significant experience helping clients respond to investigations by the HHS Office for Civil Rights and the HHS Centers for Medicare and Medicaid Services (which are charged with investigating privacy complaints and security complaints, respectively). Our representation includes: internal investigations of alleged unauthorized uses or disclosures of patient information; preparation of response to complaint investigation; negotiation with government investigators; and revision or creation of company-wide privacy and security policies governing the handling of patient information.

We serve as outside HIPAA counsel to a chain of hospitals and provide counsel to their nearly 200 hospitals throughout the U.S. Similarly, we provide advice concerning state privacy law issues. Recently, we assisted a company review and comply with the Data Breach Notification Laws in 43 states.

For more information on Carlton Fields Jorden Burt’s Information Security/Data Breach services, click here.

IRS/Tax Exemptions

We help clients acquire tax-exempt status and regularly advise not-for-profit hospitals and related entities on tax exempt matters. Our attorneys also counsel on the use of captive insurance to reduce property and casualty, workers compensation, and other insurance premium costs. Additionally, we represent health care providers regarding state and federal level tax disputes.

Our representation in this area has included: 

  • Advice to not-for-profit hospitals regarding tax exempt matters 
  • Advice on 990 reporting 
  • Advice regarding use of captive insurance to reduce costs of property and casualty, workers compensation, and other insurance premiums 
  • Developing 1023 applications for not-for-profit subsidiaries 
  • Advice to health care providers regarding saving tax exemptions 
  • Representation of health care providers in connection with tax controversies at state and federal levels 
  • Ongoing advice in managing 501(c)(3) tax status 
  • Working extensively with hospital foundation in developing philanthropy programs and initiatives

Labor and Employment

We have extensive experience representing health care employers. Our attorneys’ in-depth knowledge of general employment laws and, particularly, their application to health care facilities, allows us to assist health care employers with issues related to employment, human resources, and labor relations. We represent employers in labor and employment disputes in federal and state courts, as well as in administrative hearings, including those related to employee or physician disciplinary issues, grievances, and the hiring or firing of employees. Additionally, we provide preventative advice, prepare appropriate policies and procedures, assist in resolving benefit issues, and negotiate employment contracts or physician associations.

Licensing, Accreditation, and Survey Matters

Our representation in this area includes: 

  • Handling emergency suspensions and restrictions of a wide range of health care practitioners’ licenses and/or Medicare certification for our hospital clients and their ancillary entities. 
  • Standard of care, sexual misconduct, improper prescribing, and impaired practitioner cases before Department of Health 
  • Handling licensure proceedings before the Florida Department of Health, Florida Board of Medicine, and Florida Board of Nursing

Medical Malpractice

We have decades of experience defending health care providers of all kinds against claims of medical negligence, and have been instrumental in establishing favorable case law. Our attorneys represent acute care hospitals, academic teaching centers, skilled nursing facilities, physicians, nurses, respiratory therapists, and pharmacists. We represent several pharmaceutical houses and an international clinical laboratory. Additionally, we have defended health insurers in malpractice and standard of care disputes. Our attorneys also routinely respond to notices of investigation issued by the Florida Agency for Health Care Administration (AHCA), representing licensed health care professionals in the ensuing administrative process.

To help clients avoid litigation, we work proactively with them to improve processes and reduce malpractice claims. Toward that end, we help them strengthen admission documentation, policies and procedures, and documentation practices. We also help draft and enforce arbitration agreements, allowing health care providers to attempt to exert some degree of control over the qualifications and experience of those who will judge the malpractice claims ultimately made against them.

We explore suitable opportunities to resolve medical malpractice allegations through mediation when appropriate. When settlement is not in our clients’ best interests, we try cases. Our attorneys have experience in jury trials, bench trials, panel arbitrations and single arbitrator arbitrations. Additionally, we regularly work with expert witnesses in every medical specialty.

Pharmaceutical and Medical Device Industry

We have extensive knowledge and experience litigating pharmaceutical and medical device cases for national and international clients. Our experience representing numerous industry leaders, has given us a deep understanding of the business environment in which they operate, allowing us to efficiently and effectively represent their interests. It has also helped us lead the development of Florida law on such key issues as the learned intermediary doctrine, preemption, market share and the statute of limitations.

Project Development

We help clients sell and purchase real estate, negotiate and draft architect and construction contracts, negotiate leases from both the landlord and tenant perspectives, review and resolve environmental matters, and evaluate and resolve permitting and zoning issues.

Regulatory

Our regulatory representation includes licensure, coverage matters, subscriber assistance claims, bad faith, and litigation. We handle: 

  • Medicaid recoupment claims 
  • Matters involving DOH, HHS, and OIG 
  • Chargemaster error and disputes 
  • Rate-making, including administrative rate proceedings, judicial proceedings, and rate arbitration 
  • Form and product filing approvals 
  • Statutory accounting, admitted asset, diversification and solvency issues 
  • Insurance taxation, including premium tax, corporate income tax, retaliatory tax, and special purpose assessments 
  • Administrative rule challenge proceedings 
  • Market conduct investigations and cases 
  • Solvency and receivership actions against regulated entities 
  • Ongoing compliance issues

Transactional Services

We assist health care clients with mergers and acquisitions, affiliations, joint ventures, physician integration, and contracts. From formation through sale, our attorneys advise on corporate matters; assist in negotiations; review for corporate, regulatory, and compliance; and, document transactions.

Joint venture projects include: 

  • Oncology centers (radiation and chemo) 
  • Orthopedic surgery centers 
  • Neurology and neuroscience centers of excellence 
  • Sleep labs 
  • Ambulatory surgery centers 
  • Cardiac catheterization labs 
  • Endoscopy centers 
  • Vascular centers 
  • Cosmetic surgery programs 
  • Urology treatment centers

Our merger representation includes: 

  • Handled the merger of multiple healthcare facilities 
  • Performed market-share analysis for FTC scrutiny of mergers 
  • Advised healthcare entities in connection with potential merger or affiliation with competing health care facility 
  • Represented community-based centers in connection with government investigation of proposed mergers or consolidations

We draft and negotiate of all types of contracts, including: 

  • Purchase and sale agreements for health systems and related properties 
  • Asset purchase agreements 
  • Syndication agreements 
  • Joint venture agreements 
  • Joint operating agreements 
  • Periodic lease agreements 
  • Professional services agreements 
  • Confidentiality agreements 
  • Commercial contracts 
  • Real estate contracts 
  • Vendor agreements 
  • Managed care agreements 
  • Physician recruitment agreements 
  • Physician employment agreements 
  • Medical director agreements 
  • EMR licenses and agreements

Medical Staff and Faculty Matters 

We help coordinate peer review, credentialing, disruptive and impaired physician matters, and report issues to help ensure compliance with federal and state law, and manage the potential for resulting litigation.

Representative Matters 

  • Defense of hospitals against claims by physicians disputing disciplinary actions 
  • Defense of hospitals against claims by physicians whose privileges were denied, revoked, or curtailed 
  • Representation of hospitals against claims by physicians alleging violation of medical staff bylaws 
  • Defense of physicians’ claims alleging malice in connection with summary suspension of clinical privileges 
  • Defense of claims against hospitals alleging disciplinary actions resulted in tortious interference with patients, physicians and managed care relationships in connection 
  • Representation of hospital medical executive committees and boards of directors in peer review proceedings