Duane Morris LLP

Our considerable knowledge of the healthcare industry is the cornerstone of Duane Morris' healthcare industry litigation practice. Our lawyers support their clients in courts, arbitration, mediation and administrative proceedings by combining in-depth experience in healthcare matters with litigation skills developed in trials and hearings, as well as responding to government investigations and negotiating settlements. We provide comprehensive litigation services for any disputed matter, and strive to achieve the results for our clients that make sense in the context of the industry and the client's role in the healthcare environment.

Our healthcare litigation teams serve two distinct aspects of the healthcare industry. The first is healthcare providers, including doctors, hospitals and health systems, long-term care facilities, home health agencies, ancillary service providers, laboratories, pharmacies, free-standing ancillary and surgery facilities, information technology and other medical suppliers, healthcare consultants, medical and industry associations, and non-profit foundations. The other is pharmaceutical and medical device companies, including manufacturers, distributors, purchasing cooperatives, biotechnology companies and other vendors.

Range of Litigation Services for Healthcare Providers

Healthcare Fraud and Abuse. We defend healthcare providers across the nation in government or qui tam actions brought under the federal anti-kickback statute, Stark self-referral regulations, False Claims Act and similar state laws. On occasion, these types of claims also encompass RICO and SEC allegations to be defended. These engagements may begin with an internal compliance audit, a governmental audit or investigation, a third party payor audit or investigation, the filing of a lawsuit or upon receipt of subpoena from the Office of Inspector General, Department of Justice or state Attorney General. In defense of these matters, we understand the potentially devastating impact these claims can have on a provider and make use of our strong industry knowledge as well as our past experience with the government regulators who may be pursuing the claims.

Professional Arrangements. Our lawyers represent physicians, nurses and other healthcare professionals and hospitals in disputes regarding staff privileges, misconduct, credentialing (including economic credentialing), employment, contractual arrangements, compensation and problems arising from partnerships and joint ventures. These matters typically involve complex ongoing relationships requiring firm but sophisticated handling of the issue in dispute to seek a creative solution. Our healthcare litigation team also includes employment and benefits litigators experienced in addressing claims of discrimination, ERISA violations and wrongful termination.

Reimbursement and Managed Care. Healthcare providers denied reimbursement by federal healthcare programs or private payers turn to our lawyers to assist them in enforcing their rights. Managed care disputes often involve nonmonetary challenges to medical necessity, site of service, and other complex factors involved in payment for healthcare services, making this type of litigation much more than a contract or collection matter. We represent clients pursuing these issues not only in courts, arbitration and mediation proceedings, but in administrative hearings, before the Provider Reimbursement Review Board, in carrier or intermediary fair hearings, and through managed care grievance processes.

Antitrust and Competition. Antitrust and unfair competition lawsuits often arise between dominant payers or hospitals and physicians or competing systems vying with them for patients and managed care positioning. These cases can also involve contract breaches in business relationships and attempts to enforce non-competition covenants. Because these cases are heavily dependent on market analysis, our healthcare experience gives our lawyers a head start in analyzing and litigating antitrust and competition lawsuits in the heavily-regulated healthcare industry.

Business Reorganizations and Financial Restructuring. Our industry knowledge is fundamental to the representation of failing hospitals in bankruptcy matters. Healthcare bankruptcies also involve adversary proceedings in which bankruptcy trustees seek to increase the assets in the estate by gaining control of the assets of other healthcare entities who were contractors to, or venturers with, the debtor. Relations with government payers and continuing exposure to professional liability are also significant factors. We have represented a number of parties needing defense in such proceedings and others, such as creditors' committees, interested in resolving these specialized litigation disputes.

Patient Care and Research. Informed consent, right to treat, medical records and confidentiality, data breach response, professional liability for negligent patient care, human subject research protection, research misconduct, FDA warning letters and conflict of interest infractions are all healthcare litigation issues which our lawyers have handled. Unlike firms that handle only malpractice claims, our industry focus often enables our lawyers to develop creative lines of defense that might not otherwise be pursued and to handle matters that involve complex combinations of patient care or information issues.

Administrative Practice. Because the healthcare industry is heavily regulated, healthcare matters often involve appearing before administrative agencies or taking their decisions to court. On the federal level, such proceedings often involve reimbursement issues, but also challenge regulatory changes and provider status decisions. Our lawyers also have experience in appeals of state certificate of need (CON) decisions, challenges to state regulations and adversarial presentations to state planning boards and administrative review panels.

Nonprofit Institution and Tax Issues. Hospitals and health systems face many challenges in maintaining and taking advantage of their nonprofit status, under both federal and state taxation systems. Our healthcare and tax litigators have broad experience in litigating property tax exemptions, community benefit demonstrations, private inurement and excess benefit issues, and in gaining approval for transactions with for-profit entities. Through our representation of charitable healthcare foundations, we have considerable experience in litigating their entitlement to distributions and defending them against creditors of prior entities. Our hospital clients have also found it productive to engage us to defend their right to contested testamentary bequests.

Environmental, Energy and Construction Litigation. Our environmental and energy attorneys represent clients in litigation matters involving regulatory compliance and enforcement concerns. Environmental issues affect hospitals and other healthcare facilities in unique ways and we have litigated these complex regulatory issues before government agencies and state and federal courts. Energy litigation to oppose electricity and gas rate increases also makes use of our industry experience.

Duane Morris' national and regional construction practice involving virtually all real estate, construction and development matters has extensive experience in matters relating to healthcare facilities. We are experienced in the full range of litigation confronting hospitals, nursing, surgery and other facilities related to the purchase, sale, leasing, development, financing, condemnation, eminent domain, valuation and tax issues, and construction disputes associated with real estate development for healthcare purposes.

Range of Litigation Services for Pharmaceutical and Medical Device Companies

Intellectual Property. Companies in the pharmaceutical and medical device sector of healthcare rely on intellectual property rights to define their business expectations. Our patent litigators are adept at explaining complex technical issues in a straightforward manner while communicating the healthcare significance of the issue. We handle patent litigation for companies of all sizes as well as individual physician inventors and start-up enterprises. We also are experienced in conducting interference proceedings before the U.S. Patent and Trademark Office.

Our attorneys handle multi-billion dollar, market-defining pharmaceutical patent litigations for global pharmaceutical manufacturers. Duane Morris' intellectual property litigation practice is distinct in that our attorneys have decades of experience in trying cases to verdict, including those in the chemical/pharmaceutical arts. Our clients benefit from this perspective and insight, which can only be gained from years of "on-the-ground" patent trial experience in virtually every major jurisdiction in the United States.

Sales and Distribution Issues. Current government scrutiny of referral relationships has made manufacturers' sales and distribution arrangements with hospitals and physicians the focus of more traditional anti-kickback and False Claims Act litigation. As with our defense of healthcare providers, we are aggressive in defending pharmaceutical and medical device clients from claims of kickbacks and improper financial relationships in the distribution chain. Our industry knowledge facilitates a comprehensive defense of allegations involving the provider-manufacturer relationship, including improper research support, off-label marketing, unlawful promotion, improper consultant agreements and intellectual property development ventures and royalty arrangements.

Products Liability. Manufacturers of pharmaceuticals and medical devices are exposed to claims that their product has injured groups of people for whom the product was prescribed, resulting in a single case to thousands of cases in multi-district litigation or class actions. Our lawyers have experience handling these cases on a national or local basis, whether trying cases to juries or achieving resolution through arbitration or mediated settlements.

Environmental. The manufacturing process may involve releases of chemical agents that prompt administrative investigations and lawsuits. Duane Morris attorneys defend these cases in courts and before the EPA, and respond to DOJ requests and subpoenas for information.

Construction. The design and construction of complex research and manufacturing facilities for pharmaceutical and medical device companies often leads to construction litigation. Our construction litigators have the experience and skill to handle these matters.

Commercial and Contract Matters. Our litigators are aggressive in pursuing and defending claims between competing pharmaceutical and medical device companies or involving other business matters, such as distributor termination disputes, breach of contract actions, trade secret violations, and enforcement of non-compete restrictions.

Employment Issues. Our employment and benefits attorneys are familiar with all aspects of defending discrimination and ERISA claims in state and federal courts and before administrative panels.

Industry-Wide Litigation

Because we represent professional and trade associations within the healthcare industry, our litigation often raises issues, pursues claims or advocates for legal or regulatory changes on behalf of entire segments of the industry.

"In my discussions with Duane Morris leaders, they frequently speak about how diversity within their firm has enabled them to better serve their diverse clients. They understand that investing in diversity is a wise business decision that positions them for the marketplace of the future."

Don Liu
Senior VP, General Counsel & Corporate Secretary
Xerox Corporation

At Duane Morris, achieving diversity is paradoxical. By supporting and celebrating the differences of our attorneys - and the individual strengths that they bring - our firm culture expands, fostering creative solutions for our clients. But diversity at Duane Morris does not mean that we have a certain number of diverse attorneys; true diversity means that it is no longer noteworthy to see diverse lawyers leading our practice groups or managing client relationships. Ascending to positions of leadership and greater responsibility and providing the highest levels of client service is simply what is expected of all our lawyers. Diversity is another strong asset that adds to our collective abilities to meet the needs of our clients.

Our vision of diversity at Duane Morris is to realize an environment in which our lawyers' outstanding qualities are not just measured by ethnicity, race, gender and sexual orientation, but more importantly, that our lawyers are remarkable as excellent attorneys above all else. Only then can we celebrate our differences while focusing on the common pursuit of legal excellence which everyone shares at Duane Morris.

To reach this goal, Duane Morris understands that the familiar diversity strategies and policies that most law firms have are needed. Without demanding results from such policies, most law firms are bound to fail in even achieving numerical hiring and retention goals. Duane Morris has been proactive and ambitious in its efforts to improve diversity at the firm, and has set deadlines for reaching the milestones which mark our progress. To create a more diverse law firm, Duane Morris is:

• Committed to strategically increasing our diversity levels, which is currently at 10 percent.
• Bringing together our Diversity Committee and our Hiring and Retention Committee to raise diversity as an important factor in our hiring decisions.
• Dedicated to improving retention by building upon our monitoring and mentoring program for all diverse associates.

Combining new initiatives with our longstanding diversity efforts, Duane Morris has seen increasingly positive results. In the Minority Law Journal's annual diversity survey of the nation's largest 260 firms, Duane Morris continued to improve its regional and national ranking, rising to number 136 of all firms surveyed. Our strides in Philadelphia are encouraging; in a city known for both the racial diversity of its population and the lack thereof in its law firms, Duane Morris is one of only two law firms to exceed the national average of minority partners at all law firms. Additionally, Duane Morris leads all national law firms based in Philadelphia in the number of Latino partners. Nearly 30 percent of all of our attorneys are women, and more than 20 percent of our partners are women.

In our approach to diversity, progress in racial, gender and cultural diversity cannot be measured in numbers alone. Duane Morris has focused our diversity initiatives on both increasing the number of diverse associates and addressing the challenges diverse attorneys face in building lasting careers and rising to senior and leadership positions. While several of our key practice groups are led by diverse partners and female partners, Duane Morris endeavors to create a culture which will foster a deep pool of such attorneys who can then develop into the firm's future leaders. Duane Morris understands that simply hiring diverse associates will not change the diversity of the firm; Duane Morris is working to mentor and retain diverse associates so that our progress in racial, gender and cultural diversity is also reflected at the highest levels of leadership within the firm.

Our progress on gender diversity has been profound. We have no glass ceilings: women hold positions of leadership at all levels of management at the firm. Women lead a number of our key practice groups, including our Energy, Immigration and International practices, and serve on the firm's Executive Committee. The success of our female attorneys at Duane Morris has not gone unnoticed. Barbara Adams was chair of the firm's Finance Practice until her appointment by Pennsylvania Governor Edward Rendell to serve as General Counsel of the Commonwealth. In 2004, our longtime General Counsel, Gene E.K. Pratter, was approved by the United States Senate and is now a judge for the U.S. District Court for the Eastern District of Pennsylvania.

Our efforts to improve diversity extend beyond our firm's walls. The chair of our Diversity Committee, Nolan N. Atkinson, Jr., recognized the lack of diversity in Philadelphia's legal community and formed the Philadelphia Diversity Law Group. Nolan now serves as the chair of the organization, a consortium of 25 law firms and corporations that commits to employing at least one diverse first-year law student each as a summer associate. From this program, law students of diverse backgrounds gain access to what was once an exclusive legal community, and now have the opportunity to learn and develop their legal careers with experience at Philadelphia's top law firms.

In addition to our involvement in the Philadelphia area, Duane Morris has increased our presence at national conferences and events focused on diversity. We sponsor the Hispanic National Bar Association and its job fair. Duane Morris is also a longtime supporter and sponsor of the Equality Forum, a national gay and lesbian rights organization. Duane Morris continues to sponsor the Minority Corporate Counsel Association, and is active in other associations of diverse attorneys including: the Asian American Bar Association of the Delaware Valley; the Charles Houston Bar Association; Cuban Bar Association; Korean American Lawyers Association; National American Indian Housing Counsel and the National Bar Association.

The challenge of improving gender, ethnic and cultural diversity at Duane Morris is an ongoing effort that has the support of the entire firm. Duane Morris has been at the vanguard in supporting gender diversity throughout the firm beginning a generation ago. Our diversity programs are leading to similar success in improving racial and national origin diversity at Duane Morris. But even as we share these examples of Duane Morris attorneys and our involvement in numerous legal events, associations and programs for diversity, our hope is that such examples will no longer be necessary to mention in the future. We hope that through our efforts, and the efforts of other law firms, these stories become so common that they are no longer the remarkable accomplishments they are today, but simply routine aspects of the legal world tomorrow.