Knowing the Realities
Teresa Meinders Burkett’s experiences as a nurse inform her current role as partner at Conner & Winters, where she directs the firm’s health care practice group. She talks with Super Lawyers about why her practice is one of the most interesting areas of law, why we shouldn’t be afraid of consolidated medical records and why she’s such a happy lawyer.
Published in 2011 Oklahoma Super Lawyers magazine on October 17, 2011
Q: What inspired you to choose law?
A: I was working as a registered nurse in the ICU at an academic medical center, and I became interested in the laws that affect patient care and that govern the hospital setting. It’s a very regulated and complex environment, and the patient care issues in particular grabbed me. I thought about pursuing a public administration or hospital administration degree and happened to have a federal judge as one of my patients [laughs] and had plenty of time to visit with him about the options. He strongly encouraged law school. … That was kind of the inspiration: seeing the business of it, seeing the patients, and how end-of-life care and the laws around that impact families.
Q: How has your experience as a nurse helped you in your legal career?
A: I can give very practical advice to our health care clients because I’ve been there. I worked as a registered nurse for three years during law school and worked in the health care setting for two years while I was in nursing school. I understand what the environment is and who the players are and what advice could actually be carried out, as opposed to a black-and-white answer of, “We have to do this.” Well, sometimes a doctor’s not going to do that. Or sometimes it’s just not going to work that way when you have three shifts. I can pretty much picture every situation that I get a call about and have an idea of how the people working through that issue are having to deal with it and what the realities are as far as having access to information: who can legally access it, who they can control and who they can’t.
A hospital’s like any other business except it’s got this group of highly educated professionals that work in that setting yet typically are not employees and are not controlled by hospital administration—and that’s the physicians, because in many instances, they are members of the medical staff only. They have privileges to provide services in the facility, but they own their own medical practices and have their own employees in a business setting separate from the hospital. Recognizing how you would have to deal with that type of professional in responding to issues, it’s helpful to have been there.
Q: What’s your favorite part about practicing in health care?
A: I think interacting with the clients is my favorite part of my daily job because they’re bright, they’re educated, they know their business, they appreciate it that I understand their business—and just that interaction of helping them work through complex problems is my favorite part of the day. Of course, I also do trial work and so having a jury come back with a verdict in your client’s favor is the most fulfilling success for a lawyer.
Q: Do you have a preference between litigation and nonlitigation matters?
A: I like all of it. I’m one of those few admittedly happy lawyers. I was on a cruise with my husband in Alaska a few summers ago and had gotten to know this other couple. It came out several days into the friendship that I’m a lawyer and they were shocked because I seemed to be genuinely happy and to like my work. And I was like, yes, actually, I’m a happy lawyer.
As far as between litigation and nonlitigation, it’s really hard to say because I enjoy both of them so much. Working through compliance issues and helping get a whole privacy infrastructure in place for a health information exchange in northeast Oklahoma is a nonlitigation matter that’s been challenging and fun for me this year. But, also, getting out there and taking depositions and digging into the facts when there’s allegations against your client and finding ways to poke holes in the plaintiff’s argument—because they’re usually suing us—that’s a lot of fun, too.
Q: Do you have a most memorable case?
A: The last one’s always the most memorable. [Laughs] I just had an excellent jury verdict in a credentialing dispute in a state court action. An interventional cardiologist had sued for a significant sum, believing he shouldn’t have been terminated from the medical staff of a community hospital I have worked with for years. Winning that case was really nice.
When the jury knocks on the door and their question is, “We can’t find the form to award punitive damages in favor of the hospital and against the doctor,” there’s nothing happier for a lawyer to hear when you’re representing the hospital in that case. And the judge laughed, saying, “I’ve never had that happen before!”
Q: Have you ever had anything funny happen in the courtroom?
A: Well, in that particular case, I was trying it with one of my law partners who handles all kinds of litigation matters, not just health care, and he was cross-examining a physician who was explaining that he had—I’m going to start laughing—packed a wound with 4-by-4s. Those of us in health care wouldn’t blink at that because we all know a 4-by-4 is a sterile bandage, but my law partner thought that the doctor had propped this patient up on boards in his home and left him there. He was having a very hard time trying to picture how that was helpful to the patient and asked in disbelief if that was sanitary. [Laughs] When the doctor got that the lawyer cross-examining him didn’t understand what a 4-by-4 was … I’ve been giggling about that ever since. [Laughs] You know, I guess courtrooms are pretty serious places and we didn’t laugh there, but we sure got a howling good time about that afterwards.
Q: Now that the health care reform bill passed, what kinds of changes have you seen in your practice?
A: The biggest change for the areas I work in is the concept of “accountable care organization,” or ACO. Advising clients as to how to form an accountable care organization—how that is likely to affect their reimbursement rates and the quality requirements that go into that—is a real challenge. I’ve had a number of clients who’ve expressed concern because ACOs will come in and assign members after they’ve already provided the care. There’s a lot of concern in the health care community: “Well, how do we even know what risk we’re dealing with, or how we’re going to manage the care for these people when they’re assigned to us after we’ve already provided the care?” The response to that is that providers should be providing high-quality services that are evidence-based, that have the patient at the center of it, for every patient. It shouldn’t matter who’s assigned later, because you shouldn’t treat those in the accountable care organization any differently than you would any other patient.
Then, also working on this new health information exchange. Tulsa is one of the 15 Beacon Grant Communities in the country [which are pilot program communities to see how health information technology can improve local health systems]. What we’re setting up is the health information exchange and part of our challenge is helping people understand [that the] information stored and shared on the health information exchange is just your medical record, and [that] the new way it is being shared among your health care providers is not anything to be afraid of. We’re moving towards electronic medical records for every patient. This is going to be a centralized place where all providers, all labs, all radiology services can access the patient’s information and know if they’ve already had an MRI this month and know that they already had a CBC [complete blood count] done last week so they don’t need another one. It should really help us eliminate duplication of services and drive quality indicators for the community. Oklahoma, I’m sad to admit, is one of the poorest health states in the nation. Oklahoma is the only state in the nation where people die at a younger age each year. If trends in our state continue, children today will die at younger ages than their parents will. Hopefully with this health information exchange, we can bend that curve and get some of our people healthier by understanding what kind of care they need, what their current status is, and then helping the physicians provide the best care possible.
Q: It must be a really exciting time for you to be involved in this.
A: You know what? Every day is an exciting time in health care because the law changes throughout the year. We just went through all the changes to HIPAA, with new regulations under the HITECH [Health Information Technology for Economic and Clinical Health] Act and then we’ve had recent changes to EMTALA [the Emergency Medical Treatment and Active Labor Act], as well as our state’s advance directive laws. There is never a boring time in health care. But PPACA’s [the Patient Protection and Affordable Care Act] making it very interesting. With a split in the circuits, now anticipating what the Supreme Court is likely to do with the law is interesting because you can see how it could go either way. By the time the Supreme Court gets to it, we’re already going to have so much of it implemented. Whether you like it or not, the way it was crafted is to have the most publicly popular aspects go into effect early, and if those new benefits are taken away from people, you’re going to hear some howling through the populace because they will have come to like it that their children can stay on their insurance to age 26 and that Medicare now covers annual check-ups and more preventative care. Many people will not want to give that up.
The people on Medicare like it that they can get preventative health care at no charge. They like getting counseled on end-of-life decision-making. Of course, the counseling on end-of-life care had to come out of the bill because Sarah Palin famously called such counseling a “death panel.” But some of the things that are implemented and are in effect, [like] the requirement that you cannot be turned down for health insurance because of a pre-existing condition—well, the insurance companies would go bankrupt if the law didn’t also require everybody to have insurance when you have to insure people with pre-existing conditions. If the individual mandate is the only part of the bill ruled unconstitutional, people would be able to wait to buy insurance until they are sick, and that would drive up health insurance premiums exponentially for everyone.
It seems like many of the people against the health care reform bill don’t see the individual mandate to buy insurance and the obligation for insurers to cover pre-existing conditions as the same coin, just different sides. You can’t have one requirement without the other without causing all the private sector insurance companies to suffer financially or making health insurance too expensive for employers or individuals to buy. You have to require everybody to be covered if you’re making insurance companies take all comers, regardless of their health condition. And that’s a challenging argument to make in our red state.
Q: What do you consider the most challenging part of your job?
A: It’s very challenging to handle a piece of litigation in a manner that is not overwhelming cost-wise for a client. Litigation is expensive and there’s really not any way to do it cheaply, and you can’t control it because the other side dictates much of what you have to do. With the increase in electronic discovery, simply obtaining all the documents involved in a case can run into six figures in consultant costs. If they want to take 15 depositions, you have to defend them and you have to prepare the witnesses for them. You can’t do that inexpensively. To do an excellent job and make sure we succeed but meet the client’s cost concerns is the hardest thing for me.
I do quite a bit of work that I don’t charge for because I know it’s going to be too much for the client. Representing the small, community hospitals is my lifeblood—that’s where my career started and it is probably still one of my favorite kinds of clients. I represent large health care systems, I represent some large hospitals, but I also represent some 20-bed facilities. And they just don’t have the financial resources to spend on big litigation matters. [It’s] the same thing with the long-term care industry. We represent five different long-term care chains and know that their margins are so tight that it can take away resources from patient care if they’re having to defend a big government audit or lawsuit, because they just don’t have the money to do both, frankly, and the patients come first, of course. Lawyers come second, if that. I get that. It’s really hard when the industry is so squeezed financially.
Q: What’s the most rewarding part about being a lawyer?
A: Having a happy client. I’ve had a number of clients comment after we finish something that, after talking with me, they’re able to sleep at night because they’ve been so worried about some complaint or investigation or lawsuit.
A nurse is a service profession and that was my first career. I still want to be in a helping profession, and I still consider what I do as a lawyer to be in a helping profession where I am providing a service. It’s a very personal service, and to relieve fear and to relieve burdens and to have a client say, “I’m not afraid anymore,” is just fantastic. Because that’s really what it’s all about. We’re here to provide a service and maybe not cure their medical ills, but to cure their legal ills and make them not worried about a lawsuit or managing to comply with new complex regulations. Most things in law can be dealt with. Sometimes in health care, you’re going to lose a patient, but at least in the law, it is unlikely that someone will die as a result of a legal decision. Remembering that helps you keep your perspective. Nobody’s gonna die, no matter what. And that’s an important difference. I think that was one thing that was good about working as a nurse all the way through law school—I didn’t ever really get drawn into the law school dramas and things because I was working in critical care dealing with patients who were losing their lives because of heart disease. Then to go to law school the next day and get called on in class was just not the worst part of my day because there were people that had real problems back there at the hospital. It kept me very grounded and with a good perspective, I think.
Q: Is there anything I didn’t ask about that you’d like to mention?
A: I haven’t talked a lot about my law partners. I tell you what, working in a collegial environment with bright people who also love to practice law is one of the greatest privileges I have as a professional. Working with committed, high-caliber professionals who get along well and serve their clients well is an enormous privilege. I never want to lose sight of the fact that this is a law firm with an excellent reputation for putting our clients’ needs first. Coming to work every day is a joy when you have law partners like that.