Health Care Litigation: Regulatory Risks

Watch: What General Counsel and Business Leaders Need to Know

Protected Health Information (PHI) in Discovery: PHI must be produced under specific protective orders and in line with both federal and state requirements. Some behavioral health documents require a court order before production, even with a protective order in place.
Settlements and Kickback Risk: Settlements with a regulated health care party can raise Anti-Kickback Statute and Stark Law concerns, and a payment to a referral-source physician can be questioned if it overpays the physician to keep referrals coming. Third-party evaluations of settlement value have been used to avoid later improper-payment allegations.
Corporate Practice of Medicine: In most states, corporations and hospitals cannot direct how doctors practice. A damage model relying on relationships that violate these rules or other state-law structural issues can fail and create unintended consequences in public filings.

In this episode of Speaking of Litigation^®, Epstein Becker Green attorneys Jonathan Brollier, Charles E. Weir, and Megan Thibert-Ind discuss regulatory and business issues unique to the health care industry that can affect how cases are litigated and resolved.

Regulatory Landmines in Health Care Litigation: PHI, Kickback, and Corporate Structure Risks
Play
October 6, 2026

Transcript

[00:00:00] Jonathan Brollier: Hello. Today on Speaking of Litigation, we're discussing regulatory landmines in health care disputes, HIPAA, Stark, and anti-kickback violations that litigators can inadvertently create. We're also addressing hidden complexities of health care business structures that can affect every aspect of litigation when we're working with clients in the health care space.

[00:00:20] Jonathan Brollier: We also are working to develop an understanding of how the health care industry dynamics can affect strategies and approaches to litigation as well as settlements. We're joined today by Charles Weir in the firm's Los Angeles office, as well as Megan Thibert-Ind in Chicago. My name's John Brollier. I'm a partner in the litigation group at Epstein Becker & Green here in Columbus.

[00:00:42] Jonathan Brollier: There can be many pitfalls in handling health care litigation matters that can create unanticipated issues unrelated to the litigated dispute. Today, we wanted to identify some of the bigger ones, so our audience can hopefully avoid litigating themselves into unexpected exposure. We're going to talk through some of the regulatory and business dynamics and landscapes that are unique to the health care industry, and that can directly impact how cases are both litigated and resolved.

[00:01:09] Jonathan Brollier: We're also going to address whether kickback issues can arise in settlement negotiations. We'll address mishandling of protected health information, and failing to account for issues that pertain to corporate practice of medicine. In all these fronts, the stakes are high, and the pitfalls can be very real.

[00:01:26] Jonathan Brollier: It's important for our clients to team with experienced litigators who have knowledge not just of courtroom dynamics, but of the regulatory and business environment that governs health care entities. I'd like to invite Charles Weir of our Los Angeles office to introduce himself, and then followed by Megan.

[00:01:45] Charles Weir: Hi, everyone. Thanks Jonathan. Charles Weir. I am the co-chair of Epstein Becker & Green's litigation practice. A large chunk of my practice is in the health care space, and one of the things I hope to talk to you today about some of the, as Jonathan mentioned, the specific dynamics that arise in the health care space that make it different from other industries.

[00:02:07] Megan Thibert-Ind: Hi, everyone. I'm Megan Thibert-Ind. I have spent much of the last 20 years counseling clients and litigating commercial disputes in the health care space. Given it is such a highly regulated space from my perspective, I've always approached the practice as it is not one size fits all, and each client is not the same.

[00:02:32] Megan Thibert-Ind: They face very different pressures, very different business objectives than other industries. And so we try to take that specialized knowledge and apply it to each and every conflict or dispute that we help our clients navigate.

[00:02:49] Jonathan Brollier: The first topic we're going to jump off into is handling PHI and HIPAA matters in the course of discovery and litigation.

[00:02:57] Jonathan Brollier: Regardless of what the matter may involve, if we have litigation for a participant in the health care industry, planning ahead and conducting discovery in a way that takes account of that regulatory overlay is critical. I think we can begin with an inquiry of Charles to describe some of the most basic or common mistakes that we see when litigators fail to set up proper discovery protocols and protective orders when they deal with health information.

[00:03:26] Jonathan Brollier: Charles, could you respond to that prompt and maybe give us some, some real world examples?

[00:03:30] Charles Weir: Sure, yeah. I think, you know, a lot of folks know, have heard of HIPAA and, you know, may have a general understanding that it is designed to protect the privacy of patients and their health care information. In a lot of cases we litigate, there is patient health care information, referred to as PHI, protected health information, that is often produced in litigation.

[00:03:55] Charles Weir: But it has to be produced in a particular way, and it has to be produced subject to very specific protective orders and rules so that you're following along with the regulatory landscape. It isn't … the other complexity that arises is not all PHI or protected health information is created the same.

[00:04:14] Charles Weir: Some have very heightened requirements as to when you can and can't produce them. For example, in the behavioral health space, there are certain documents that you need a court order before they're even produced regardless of whether you have a protective order. So it is knowing, you know, kind of what the general landscape is going to be, or likely to be, of the documents that are produced, and making sure that you set up various protocols and are producing them consistent with both the federal requirements and the state requirements, is always a key first step in the in the litigation process.

[00:04:49] Megan Thibert-Ind: You know I would say generally one of the things that we deal with in this space is often we're opposed to parties or counsel, or there are decision-makers, either in arbitration proceeding or in front of a court, who themselves don't have the understanding of what the requirements are for protecting PHI and HIPAA.

[00:05:11] Megan Thibert-Ind: And so another thing to consider while you're setting up the protocol and we're talking about the various pitfalls to discovery of this type of information, is that there's also a learning curve for the other side and likely the judge or arbitrator or mediator in your case. And so really approaching discovery in a very intentional, methodical way and realizing that you also are probably, unfortunately, responsible for educating the other side is something that also has to be considered as you approach these matters.

[00:05:46] Jonathan Brollier: Megan, what's been your experience with engaging that process of education or enlightenment to a court who may have less familiarity with the regulatory requirements? How do you navigate that dynamic of maybe providing education to the judge who's going to be making other decisions in the case without overstepping, while also ensuring that the right steps are taken to protect this kind of information?

[00:06:14] Megan Thibert-Ind: You know I think the challenge is often that everyone's interests aren't necessarily aligned, particularly if you're embroiled in actual litigation. And so the other side is, they're trying to get as much information as possible, and so they're likely asking for the universe. And the judge or arbitrator, their motivation is probably just to get you either off the Zoom or out of their courtroom as soon as possible.

[00:06:41] Megan Thibert-Ind: So, we're navigating that. I think the way that I try to approach it is to help both our colleagues on the other side and decision-makers in these cases really understand what the implications are to either providing too much information or requiring us to provide information without a sufficient amount of time to navigate even just basic things like redaction of PHI.

[00:07:13] Megan Thibert-Ind: And, you know, really trying to get everyone to a place where we've narrowed by scope what really needs to be discoverable in any case. It has the added benefit, of course, of making litigating whatever the dispute is more manageable for everybody. But at the end of the day, we always have the backstop of what HIPAA does and does not allow us to do, and that's a pretty good place to have as your fallback.

[00:07:44] Megan Thibert-Ind: But it ... Again, if you don't quite understand how that works, and to Charles’ earlier point about, you know not all PHI is built the same or has the same implications, you really have to understand these things so that you can maintain credibility versus taking the position that you know, everything is blanketly off the table.

[00:08:09] Megan Thibert-Ind: That tactic does not work. And so again, it's really understanding how the regulations work, what the interplay is with them, and my experience has been if you lead with that versus the idea that you just either don't want to produce it or it's annoying or takes a long time, that's a better strategy than the other.

[00:08:30] Jonathan Brollier: Charles, my experience with clients has been that they are rarely excited or thrilled to engage deeply in the subject of discovery protocols and protective orders. How do you navigate the client dynamic of emphasizing the importance of these matters and then interfacing with the client on the discovery process when we have this regulatory overlay, especially in the health care industry?

[00:08:57] Charles Weir: Well your experience is similar to my experience. If you want to put your client to sleep, talk about discovery protocols, and I think that usually is going to do the trick. So I, you know, there's... It depends on a lot of things. It depends on, you know, the sophistication of the client and how often they're dealing with these things.

[00:09:15] Charles Weir: I find that most clients in the health care space are going to have some general understanding that there are limitations on not only what is produced, but how it is produced and what protections need to be put in place. You know, so they're usually sensitive enough to the issues that they're willing to engage.

[00:09:36] Charles Weir: You know, the one, Megan touched on this a little bit, the one area where I think you end up with the most client friction, and I think it's as important as understanding what type of information you might be producing in the case to make sure you have the protocols in place, but is the volume of information that you may be producing in the case.

[00:09:55] Charles Weir: Health care entities create a tremendous amount of data. You know, a hospital system is creating patient records and data with respect to their operations on a massive scale and on a daily basis. And those are, all of that data is stored in a bunch of different ways and ways that are often unique to the health care industry.

[00:10:18] Charles Weir: They have these massive electronic medical record systems, for example. And so working with the client to not only identify, you know, what might be produced, but what type of searching tools are available, how you're going to capture these materials, how you're going to limit the massive amount of data that is collected and produced.

[00:10:38] Charles Weir: Because it's one thing to collect it and produce it, and then that's great. Now you have all this data that's been produced. What do you do with it? How do you analyze it? So I find that you really have to anticipate not only what will be produced as kind of a type of data, but the volume that you're willing to produce and how you're going to go about that, get ahead of that, and then make your proposal, hopefully to the other side or to the judge if you need to, so that you can really help get the case pointed on a way that makes for an efficient resolution of the matter.

[00:11:13] Charles Weir: And like I said, that latter part of the volume issue is the one that usually requires the most client engagement and can be the trickiest.

[00:11:24] Megan Thibert-Ind: Jonathan, can I add something there? It made me think about a kind of common pitfall I think that happens in a lot of litigation, and that's misunderstanding what the scope of discovery is going to look like or maybe not even misunderstanding, but underestimating.

[00:11:43] Megan Thibert-Ind: So, you know, it's obvious to those of us who do this kind of work that if it's a payor-provider dispute about reimbursement of claims, you're going to have a lot of data about patients. And so you're thinking about these issues at the get-go in a case like that. But I've seen a lot of cases where it's a contractual dispute that really doesn't have anything to do with patient information until you get to what may be a damages phase of the case.

[00:12:16] Megan Thibert-Ind: And then you're realizing that you're pulling a bunch of information that includes patient data that has to go to the experts in the case, and now you're dealing with third parties getting the information, and how are they storing that as well? So you know, this conversation just made me think about, again, looking ahead in the case, not just at fact discovery or not just at, you know, what do I understand at a base level this case to be about, but really thinking about could we run into this in the future, this being there's PHI or information that's protected by HIPAA that's going to have to be produced in this case.

[00:12:54] Megan Thibert-Ind: Because it's, I think, most difficult to navigate that when you haven't thought about it for maybe the first 6, 12, or 18 months of discovery, and now it's an issue that's come up, and you're trying to get everybody on the same page rather far into the case.

[00:13:09] Jonathan Brollier: That's a great point. Let's pivot and look forward to, in the sequence of a case or the life cycle of a case, eventually many of these matters are resolved with a settlement.

[00:13:20] Jonathan Brollier: And when a party on one side or the other of the V in the litigation is a regulated health care business or entity, settlements can sometimes inadvertently or nibble around the edges of anti-kickback statute and Stark violation concerns that our clients in health care are often aware of from their business operations, but may not be thinking ahead of as implications of settlement.

[00:13:50] Jonathan Brollier: So Charles, maybe you could begin with a quick overview of anti-kickback and Stark so we understand generally what we're talking about, and then let's pivot or zoom in on how do those issues arise or be navigated around when we're crafting settlements.

[00:14:06] Charles Weir: Yeah, sure, Jonathan. So the very high level, because this is not an anti-kickback or Stark podcast that would … we could spend a long time in either one of them.

[00:14:17] Charles Weir: But so very simply the anti-kickback statutes prevents folks for paying for referrals. You know, giving the physician something of value so that they send their patient to your facility or your surgery center or your imaging center, it's a no-no, and it's flat-out prohibited.

[00:14:38] Charles Weir: Where that rule can come into play in litigation is what is remuneration? What is anything of value that you're giving to a physician? And, you know, lots of times in health care cases, you are litigating either beside a physician if you're representing a hospital system, for example, there may be a codefendant that's a physician.

[00:14:57] Charles Weir: You may be in a lawsuit directly against a physician that may be a referral source. So during the life cycle of the case, if you are doing something that is perceived to be giving the physician referral source something of value, it can create some issues for you. So how can that arise?

[00:15:15] Charles Weir: So for example, if you are settling a case with a physician that's a referral source, is the settlement something that is... Is it a fair settlement? Is something that is a fair market value payment that's being made, or are you overpaying to settle this case because you want to keep the physician happy and the referrals rolling?

[00:15:37] Charles Weir: You know, so those are some of the issues that can arise, and you know, if you don't analyze those properly you can find yourself with being questioned about whether or not your settlement was a legitimate settlement or really was whether something that was really designed to be a kickback, and next thing you know, your litigation settlement is triggering some sort of investigation that you didn't anticipate.

[00:15:58] Jonathan Brollier: I know that health care providers, health systems, often engage independent firms to opine on fair market value or offer fair market value opinions. A question I have candidly is whether you've ever seen any sort of third-party vendor or expert be engaged to opine about the reasonableness of a settlement for these purposes.

[00:16:20] Charles Weir: Yes. Yeah, where the concern is identified and to make sure that on the back end, there's no accusation that this was paid for an improper purpose. You know, seeing the settlement evaluated by a third party to say, "Yep, this is... These are legitimate claims that the physician had.

[00:16:40] Charles Weir: They, you know, are reasonably valued at this rate, and this is the risk that was being faced. And so this is a settlement that is within the bounds of what you would expect a case like this to settle for." So yeah, absolutely, I've seen that evaluation done just to avoid the later allegation that, like I said, there was some sort of untoward payment going on in connection with settling a dispute.

[00:17:09] Charles Weir: And it doesn't have to be settlement directly with the physician. Maybe you're settling, you know, a group of defendants or settling one of which is a physician. Okay, you're analyzing, okay, what was the physician's exposure in that? What is the physician paid? How has this worked out? That's another scenario in which this can commonly come into play.

[00:17:27] Jonathan Brollier: Do you have any experience with addressing these concerns of settlements navigating around anti-kickback statute or the Stark Law and distinctions that may arise when the adverse party is perhaps an employee versus an independent contractor physician?

[00:17:44] Jonathan Brollier: Is that distinction material in the way that these settlements are arranged?

[00:17:48] Charles Weir: There's a couple things that you know, beyond just the anti-kickback aspect of, you know, that governs relationships and payments between participants in the health care industry, that there is... the health care industry is unique in that it's regulated in ways that other industries are not.

[00:18:06] Charles Weir: What do I mean by that? So when you mentioned an employed physician, a number of states do not allow hospitals to employ physicians. That is another issue that as you're litigating these cases, if you are in a state that does not allow a hospital to employ a physician, I've seen that mistake made a lot, that you have litigants who will, or lawyers who will treat the physician as if they're an employee of the hospital and litigate the case that way. And that often leads to mistakes and misapplication of the law because they're just kind of misunderstanding the dynamics between the parties.

[00:18:47] Charles Weir: You know, as far as the kickbacks aspect of that goes, it really depends on kind of the... It's more driven by the referral source question. Is this physician referring patients to my hospital or to my surgery center or imaging center or to my laboratory to do lab work? And if the answer is yes, that puts the relationship and all the payments between the hospital, surgery center, et cetera and that physician under a bit of a microscope.

[00:19:21] Charles Weir: And that's where you, that's when you have to ask yourself, "Okay, could somebody look at this and question it later?" That this, this may be a payment that was made to induce referrals as opposed to a payment to solve a lawsuit or to address another another issue.

[00:19:37] Megan Thibert-Ind: Yeah. Where I see this come up in my practice is most often where the clients are some combination of businesspeople and health care professionals.

[00:19:50] Megan Thibert-Ind: And you have maybe on the one hand executive leadership that has a company in which there are various health care providers that are providing services to hospitals, for example. And there's often, not always, but often what those cases end up coming down to is sort of very, you know, straight down the middle commercial contractual dispute where the leadership, the executives might decide, "Let's resolve this by, we'll take a haircut on the services that we already provided to the hospital in exchange for re-upping our agreement with the hospital.

[00:20:39] Megan Thibert-Ind: We're going to continue to provide certain health care services, inpatient services to the hospital, and we're going to enter into a renewed five-year contract," or something like that. But there are two years' worth of unpaid services. And so that's where we really, I've really seen this tension and really had to try to help clients navigate that issue where there's a tension between, you know, from a business side, it might make sense to walk away from certain amounts, but from a regulatory side, you can't in exchange for getting more business from the hospital down the road.

[00:21:19] Megan Thibert-Ind: So that's the context in which I frequently see this in my practice, and we have to be, you know, very conscientious as we're navigating that and that tension between what makes sense from a business perspective and what's required from a health care regulatory perspective.

[00:21:38] Jonathan Brollier: Well, let's talk a little further about how the unique structures or business structures of health care entities intersect with laws and regulations surrounding the corporate practice of medicine, and in turn, how those constraints on business structures play out in the course of litigation.

[00:21:56] Jonathan Brollier: Charles, I don't know if you can give us an example of where that regulation of business structure in particular crops up or plays out in the course of litigation involving health care.

[00:22:09] Charles Weir: This question goes to really the bigger point of this, this podcast, that there's you know, that health care has a number of dynamics between the players in the industry that are unique.

[00:22:24] Charles Weir: If I am selling widgets and I have a deal with my widget supplier, I have a deal with my widget supplier and I want to, you know, change that deal or I want to tell the widget supplier to make the parts I need in a different way, there's usually not going to be any issue with that.

[00:22:41] Charles Weir: You just do it. And the business, their business reasons drives that. In health care, it often is very different. You cannot, in most states, as you mentioned Jonathan, there's a prohibition on the corporate practice of medicine. What does that mean? That means that corporations or hospitals can't tell doctors how they should be practicing or how they should be treating their patients.

[00:23:07] Charles Weir: And the rules are a little bit different in every state, but it creates a different dynamic that you have to deal with in the litigation. And you need to be aware of that because it impacts positions you can take in the litigation. And I have seen, as far as a mistake goes in kind of misunderstanding those relationships, I've seen it most often come up in damage models where you'll have a plaintiff who will construct a damage model that is reliant upon certain relationships existing or certain contracts existing or certain obligations existing that lead to either referrals or business for a particular health care entity.

[00:23:46] Charles Weir: And then you look at it and you go, "Well, wait a minute. If that's true, then you've created all these regulatory problems for yourself because you're, you know, violating corporate practice of medicine rules or other other structural issues that may exist under different state laws."

[00:24:02] Charles Weir: So it is an area that really if you don't understand the relationship of the key players and how all the parties fit together you can really make some mistakes not only in the litigation and your damage model blows up, but you know, create some unintended consequences if you're putting in public filings that you're … that certain relationship exists as to support a damage model that would actually, you know be illegal at the end of the day.

[00:24:33] Jonathan Brollier: Megan, what's been your experience with the effect that these business structure arrangements in the health care industry have on both litigation and settlement?

[00:24:44] Megan Thibert-Ind: Yeah. I deal with this in my practice all the time. We had a conversation about it prior to this podcast. One of the areas where I see this happen, and I will say I'm a bit of a self-professed nerd when it comes to adherence to corporate form, and I think Charles would probably join me in that club. Aand there's a reason, because, you know, I've been involved in cases where I've come in much later after the case has gone through discovery, it's gone through dispositive motion practice, it's maybe getting ready for trial.

[00:25:28] Megan Thibert-Ind: And you had counsel who are sophisticated litigators, but they don't understand the health care organizational structure. They don't understand how the corporate form might work. And now maybe I represent a client who's purchased or engaged in an acquisition with some of the entities that have been involved in this litigation for months or years.

[00:25:53] Megan Thibert-Ind: And it turns out that certain mistakes were made, for example, not understanding the point that Charles made earlier, that in many, if not most states, you can't bind physician owners as one example. And so having cases where multiple entities are named, they all have similar names.

[00:26:22] Megan Thibert-Ind: They kind of sound the same. Except one's a friendly PC, one's a MSO, one's a parent company, and not understanding that each of those entities have either different liability or no liability under certain claims and, you know, also maybe not understanding how the compensation structure works for those physician owners.

[00:26:48] Megan Thibert-Ind: I've dealt with one quite recently where sort of the failure to understand this corporate structure issue and how the physicians, for whom the physicians work and by whom they get paid. And it's now so far down the road that that payment, deferred compensation, and all of those things for the physicians is really having a major impact on trying to figure out how to settle and resolve a case because there's all sorts of tax implications for those physicians.

[00:27:24] Megan Thibert-Ind: There are some regulatory and disclosure requirements that, you know, good competent counsel maybe just didn't understand because they work in so many different industries and don't have really kind of a finger on the pulse of issues like this that really can come back to sort of haunt you when you're trying to figure out, at the end of the day, as you go into trial or maybe even after you have a verdict, who's on the hook, who's getting the money, who's paying the money, all of those questions.

[00:27:56] Jonathan Brollier: Some of us spend a lot of time representing hospitals in litigation. Do either of you have experience with addressing issues that may arise with indemnification obligations that can arise in the context of hospital bylaws or medical staff bylaws that can come into play?

[00:28:16] Charles Weir: Yeah, sure.

[00:28:16] Charles WeirIndemnification or paying a physician's legal fees, it's another area where some of the things we've been talking about can arise, where you have to analyze whether or not the payments that you are making are something that are justified, or are these payments that could be misconstrued down the road as, "Oh, well, is this some sort of kickback?"

[00:28:39] Charles Weir: Because you shouldn't be covering this physician's legal fees for whatever reason. So you know this does come up in joint representation situations. It comes up, as you mentioned, Jonathan, in the indemnification context. You have a contractual indemnification obligation. But it is another one of those areas that is a pitfall, where because you are giving something of value, potentially, or it could be perceived as that way, to a physician that may be a referral source.

[00:29:06] Charles Weir: And so anytime you have that dynamic, you can create an issue or potentially create a problem or trigger some sort of investigation when you didn't when you didn't intend to. And outside of the health care context, that would all ... You wouldn't have any of these questions. You wouldn't ... It would be normal.

[00:29:25] Charles Weir: Okay, I, you know, I have this person here that we're working with. We're co-defendants in this case, and it makes sense for me to pick up their legal fees because of X, Y, and Z, or maybe they can't afford it, and I need them to have good representation. But when you add the health care layer and all of the the regulatory dynamics and all of the dynamics that, as between the various players that we've been discussing, every time you have that scenario, you need to ask yourself, what is this going to look like and could this be misperceived as some sort of you know, some sort of payment in return for for a referral?

[00:30:02] Jonathan Brollier: How can you structure those in multi-party litigations, these engagements, so that you stay regulatorily compliant or clean while also achieving that business goal of, you know, if you have a physician who's a co-defendant to, if not keep them on side, comply with expectations or agreements where that co-defendant entity will furnish the defense for the individuals?

[00:30:30] Charles Weir: Yeah. So it's going to be very case-specific. So the easier ones are if you have a preexisting contractual obligation where you have to pay for legal fees and that has been triggered because of the existence of the lawsuit, you had that preexisting obligation. The ones that get a little more nuanced is where maybe you don't have that and it's just that, "Gee, we would really like to do this because we think it's better for the whole of the case."

[00:30:52] Charles Weir: And then you have to evaluate, you know, well, what is the physician's real risk here and what is the cost associated with paying for this physician, and could this be misconstrued? Sometimes it just gets to be too tricky of an analysis and you're better off just advising that, "Look, you're, the physician's going to have to have separate counsel, and sorry, we can't pick up the tab for that," if you're, for example, if you're representing a hospital.

[00:31:19] Charles Weir: You know, and that... So it really is going to be a case-specific thing, but those are some of the issues you gotta really think through when you are dealing with a litigation that involves somebody who's also a referral source for your client.

[00:31:34] Jonathan Brollier: The takeaway on that point is not merely that if everyone on your side of the litigation agrees or consents to waive conflicts, that then you're clear.

[00:31:43] Jonathan Brollier: We have to really be vigilant on behalf of our clients to look out for the regulatory implications that could create way more problems than the litigation itself, and to remain really knowledgeable about the structure of the clients and how they're regulated so that we don't create more trouble for them than there are.

[00:32:05] Charles Weir: No, that's exactly right. You end up, think you have, you got everything set up right. You have a litigation. If you're representing a hospital system and a physician, those two get sued by a third party. You know, hospital ends up picking up all the costs. Yay, you win the case, and then all of a sudden the government knocks on your door and says, "Hey, wait a minute.

[00:32:25] Charles Weir: Why were all these payments going to cover this, the legal fees for this doctor, and what's going on there?" And you turn a happy scenario into a scenario where you're stuck trying to explain to a regulating entity that, you know, "Geez, there's nothing wrong here.

[00:32:41] Charles Weir: This is why we did this." And so you do want to think through those things on the front end as much as you can to mitigate the risk on the back end.

[00:32:47] Megan Thibert-Ind: Yeah, I think you have to consider the regulators. We also have a lot of clients in the health care industry that have to consider their shareholders as well.

[00:32:56] Megan Thibert-Ind: And sometimes those … explaining to those various contingencies is not the first thing that's on your mind as litigation counsel, right? So again, having those things be proactive rather than reactive is almost always the right answer to preventing a sort of a bad outcome and really understanding before getting the advice that you need, if you're a litigator and you need to have securities counsel or regulatory counsel look at something, have a willingness to do it and to spot those issues early and often.

[00:33:38] Jonathan Brollier: Do either of you want to elaborate further on the joint representation considerations?

[00:33:43] Megan Thibert-Ind: From a joint representation standpoint, there's lots of issues.

[00:33:49] Megan Thibert-Ind: We've talked about this kind of regulatory and kickback issue. But I'm … more and more as I have cases that involve complicated organizational structure, navigating these conflicts get very complicated, particularly given how long litigation lasts. With the presence of private equity and the frequency with which organizations are changing ownership structure or corporate structure and who inherits what liability and having the ability to connect the dots and follow the trail, if you will, on some of that, is an ever-complicated part of our practice, and it can change.

[00:34:44] Megan Thibert-Ind: That's the thing that's strange. You can have conflicts that arise, I think we call them thrust-upon conflicts, but this sort of thrust-upon conflicts during the middle of litigation because there's some transaction that arises or some event that really doesn't have anything to do with the lawsuit itself.

[00:35:04] Megan Thibert-Ind: And again, that's another area, and we don't, it's probably a podcast of its own, but that's another area where you see conflicts that are unique in the health care space just because of the frequency with which we see ownership change and activity, if you will, in the marketplace.

[00:35:26] Jonathan Brollier: Well, it's been invaluable having both of you participate in the podcast.

[00:35:30] Jonathan Brollier: And let me also say, as someone who's been at the firm for five years, how thrilled we are that both of you have joined Epstein Becker & Green, and we hope that you'll join us again for future podcasts. But Charles Weir, Megan Thibert-Ind, thank you for joining us. I think it's been a great podcast, and watch this space for more Speaking of Litigation in the future.

[00:35:50] Megan Thibert-Ind: Thank you so much, Jonathan. We were happy to be here.

[00:35:53] Charles Weir: Thank you, Jonathan.

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About Speaking of Litigation

For executives and in-house counsel—before, during, and after a dispute. No business likes litigation, but almost every business faces it. Speaking of Litigation® delivers practical intelligence to help you make better decisions when it matters most. Part of the Epstein Becker Green Insights Network.