Public Health Law Map - Beta 5 - Medical and Public Health Law Site

and the attorney to recognize when they need to take action to protect the client’s
legal health.
4. Remedying Problems
The client may make an informed choice and decide not to remedy all of the legal
problems that are detected, just as a patient may make an informed choice to forgo
treatment for conditions detected in a general history and physical. However, once a
legal problem has been identified, it becomes more dangerous to ignore. Conduct
that was negligent when done unknowingly becomes intentional or reckless once the
physician is notified that the behavior is questionable. This does not mean that
ignorance is defensible. Medical care practitioners who violate the law can be
prosecuted irrespective of whether they know the specifics of the law that they break.
The constitutional requirement is that the law be specific enough to define illegal
behavior clearly, not that defendants personally know they are breaking the law.
I. Confidentiality and Legal Privilege
There is a strong public policy to encourage people and institutions to seek legal
advice. In civil and regulatory matters it is assumed that legal advice will encourage
them to be more law abiding. In criminal matters there is a constitutional right to
counsel and any undue restrictions on the attorney–client relationship would violate
that right. It is assumed that clients cannot work effectively with counsel unless their
confidences are protected. Ten years ago, discussions of legal privilege in medical care
were centered around discovery of hospital incident reports and peer review records in
civil litigation. While these are still significant issues, federal and state criminal
prosecutions for health care fraud have made medical care practitioners much more
concerned with legal privilege as related to business records and compliance audits.
There are two types of legal privilege: the attorney–client communication privilege,
and the attorney work product privilege. These provide varying amounts of protection,
but they do not automatically attach just because an attorney is involved with a
transaction. They depend on both the client’s behavior and whether the attorney is
acting as independent legal counsel.
1. Attorney Independence
Attorney independence is usually not an issue for attorneys in private practice
representing clients in traditional litigation or transaction practice, unless the attorney
is in business with the client, or becomes a participant in the client’s wrongdoing.
There is no protection if the court determines that the attorney–client relationship
was a sham to conceal illegal activities involving the attorney. There has already
been one case in which medical care attorneys were indicted, along with their clients,
for materially participating in the clients’ alleged scheme to defraud the federal
government. The physicians were accused of taking kickbacks to steer nursing home
patients needing hospital care to hospitals that paid the physicians’ bribes. These
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