No Time to Waste

Celeste Jones is well-known for her expertise in health care litigation. She is also the go-to person when someone faints in the courtroom

Published in 2013 South Carolina Super Lawyers — May 2013

Photo by: Stan Kaady

While Celeste Jones of the McNair Law Firm in Columbia does a bit of white collar defense and aviation law, health care law and litigation have become her central focus. In 1995, before health care became an issue at the center of national debate, she published The Criminalization of Healthcare which gave providers step-by-step advice on how to avoid being prosecuted for fraud.

She came to health care law through a confluence of circumstances. She was employed as a registered nurse at a time when lawyers were paying RNs to interpret medical documents. One of her first assignments after graduating law school was reading medical documents for lawyers at Blatt & Fales—the firm that was instrumental in bringing the damages of asbestos to light at a time when the toxic material was believed to be harmless.

We spoke with her in January.

 

Q: While you were studying law, you worked as a registered nurse. Tell me about that transition.

A: I started college young—I think I was 17—and I majored in nursing. My grandmother had been a “practical nurse.” I don’t know if they even had licenses back then. They just went through sort of on-the-job training. So that is what she was called: a “practical nurse.” She was my role model.

After I received my RN license, I started working at a Baptist hospital on the surgical floor. I really liked the hospital. I was a regular full-time law student at the University of South Carolina law school, and then I worked at Baptist every other weekend in the PRN [as-needed] pool and then the 3 to 11 shift on days where it would correspond with my schedule.

 

Q: Did you imagine you would become involved in health care litigation?

A: I really didn’t have any concept that there was a crossroads between law and health care at that point in time. But one of my patients ended up being the wife of an attorney who was a pioneer in South Carolina in doing medical malpractice work: Fayrell Furr. She made the connection. I went to work for him as a law clerk because he was willing to pay more. … My parents paid for my law school, but I had to earn money for myself. I did not come from an affluent family, so I needed to pitch in. I worked there until I graduated from law school. Then I got a job at the Blatt & Fales law firm. Blatt & Fales is where Joe Rice, Ron Motley, Terry Richardson and various others were involved in asbestos litigation.

 

Q: With that asbestos litigation you were in the background of something that became quite significant. What was the first big case where you were in the foreground?

A: I would say that was around 1982 when I was working at McNair. I was representing a pharmacist down in Orangeburg, South Carolina named Jimmy Johnson. He was charged with obtaining money under false pretenses, which is a misdemeanor charge, because he billed for a higher level wheelchair than he actually dispensed to the patient.

Maybe Mr. Johnson knew what he was doing. I doubt he did. I think he was just writing some crap down to get paid because nobody was really looking at billing codes and stuff back then.

Anyway, he got thumped for that. He paid a $200 fine but then he got a letter from Health and Human Services saying, “We’re kicking you out as a provider for Medicare and Medicaid.”

Because he already paid the criminal fine and penalty and been punished for his criminal conduct, I took the position that they could not disbar him because it was punishment. It wasn’t to recover the money so it was a double jeopardy kind of argument.

We did not litigate that to finality.

He transferred ownership of the pharmacy to his spouse and was able to continue to work there and they allowed it. He had a period where he couldn’t be the owner but he was still able to function.

It is a bright line. If you cross that line you are out. All that money you spent going to medical school is down the toilet because you not only get your license taken away from you, but your provider status is revoked.

 

Q: Tell me about your typical caseload.

A: Sometimes it’s reimbursement, getting paid by the third party. Sometimes it’s credentialing. It’s where a hospital, for example, has a staff member that the medical staff believes has some personal issues or quality of care issues that require peer review, and if the medical staff votes, there is peer action. That means that the hospital is in an action against that individual provider.

The only criminal defense work I do is white collar, and it’s usually tax cases or reimbursement cases, billing fraud.

 

Q: Dennis Kelly was a pretty famous billing fraud case that went to trial.

A: Yes. Dennis Kelly was one of them that went to the 11th Circuit. He was a former [financial manager at] Augusta Healthmaster accused of Medicare fraud. Dennis went to trial and he was convicted on the majority of the counts. It was like a 65-count indictment.

When I think about that case, I remember the judge. We tried the case for a couple of weeks before Judge [Anthony] Alaimo, down in the Southern District of Georgia. He is a legend. It was an experience to try a case with him. That man has never been in doubt in his life.

He runs his courtroom with efficiency, precision and very clear guidelines. When he says you have 40 minutes to open, when you have five minutes left, he says, “You’ve got five minutes left.” When your time is up, he says, “Your time is up. Sit down.”

He brings all the witnesses in, en masse, and swears them in at once, in the morning before the jury comes in. Then he sends them all out, and you call all the witnesses and they come and get on the stand. The jury never sees the witness sworn in. It’s boom, boom, boom. If there is a pause in the action, he will tell you to ask another question or rest. He requires his jurors—the gentlemen—to wear a coat and tie.

Here’s an example of one particularly exciting day, during the post-trial motions. One of the lawyers in the case passed out. He’s some kind of runner that runs 10 miles a day. He had gotten up that morning and ran his 10 miles and he didn’t eat anything, so his blood sugar dropped and he fainted. Because he knew I was a nurse, Judge Alaimo called on me. And I go up there. I can’t get a pulse on the guy. His pulse was so low, I said, “You need to call an ambulance.”

They hauled him off to the hospital.

Then Judge Alaimo made me proceed with my arguments after the ambulance had taken this lawyer away.

 

Q: It sounds like you admired his refusal to waste time.

A: Absolutely.

 

Q: Where do you see waste of time or resources these days?

A: The thing that has changed the practice of law the most, at least in my eyes over the last 30 or so years is the computer. It’s from the way we file things in federal court—it’s a completely paperless system—to electronic discovery. It is ghastly, ESI. It’s horrible. I guess I shouldn’t say horrible. It has made litigation almost completely cost-prohibitive.

I think about that. I think about 32 years ago when I first started practicing law, we had the most advanced piece of equipment in this office. It was a memory typewriter that would hold three pages. Three pages! There was no big editing. If you edited something it was on this big long legal sheet and you’d do it by hand. You’d read it, you’d pick it up, and then when you really got it in final form, you’d give it to someone to type.

Electronic discovery means that every time there is a lawsuit, everybody on both sides has to produce everything they have up on the Internet, all of their internal emails back and forth in the office, the draft, the metadata behind it. And you know people spend their lives on their cell phones, they live on texting, and they live on their emails. That’s the way you communicate. That’s the way clients want to communicate with me. They don’t want to call me and leave a message and me call them back and play phone tag for three days. They send me an email and say, “When is this deposition going to take place?” There is no talking. Then you write back and say, “We’ll meet Tuesday at 2 o’clock, and the deposition will be Wednesday morning.”

It is the way of the world. It is wildly expensive. It results in enormous numbers of documents. I’m working on a construction case right now where there are more than a million pages of documents.

As a consequence, very few lawyers go to trial anymore without an expert somewhere, which adds to the costs.

 

Q: How do you find those experts?

A: The Internet, baby!

Photo by: Stan Kaady

Photo by: Stan Kaady

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