There are two fundamentally different ways to approach law. One is to deal with legal problems as they arise. A classic example is the defense of medical malpractice litigation. The first the physician thinks about the lawsuit is when he or she is served with the plaintiff’s complaint or notice of a claim. At that point the physician engages a defense lawyer, usually through the physician’s medical malpractice insurance carrier. This approach deals with “cold facts,” facts that have already happened and cannot be changed. The law must be fit around these facts. If it does not fit, the physician loses.

The alternative is called preventive law. Preventive law, like preventive medicine, is based on preventing problems before they arise. This is called dealing with “hot facts,” facts that have not yet arisen and thus can be changed. A simple preventive law example is a consent form for medical treatment. The consent form serves both to reduce the chance of patient injury (being denied adequate information) and to help prevent legal disputes by clearly establishing what information the patient was given. Properly kept medical records serve many preventive law functions. They help prevent medical malpractice litigation by documenting the patient’s condition and treatment. They provide protection against false claims prosecutions by providing the documentation necessary to substantiate claims for payment from Medicare.

The key to preventive law in medical care is integrating the law into the health care practitioner’s routine practice. This requires that the medical care practitioner learn some legal basics about day-to-day care. These basics will solve many of the first line legal problems that arise and will help the practitioner know when to get expert legal advice. A preventive law approach has always made good business sense. It is now a federal requirement for hospitals that receive Medicare/Medicaid funds. The Conditions for Participation for the Medicare program now require hospitals and certain other providers to have a “compliance” program to ensure that the hospital and all affiliated providers comply with the laws governing receipt of federal medical care funds. These compliance plans are classic preventive law plans.