Health Law Certification: A Growing Need

By Sandra L. Burr, LL.M. Candidate

Regretfully, many state bar associations have failed to keep pace with the changes in health care law. Although most state bar associations have committees on health care law only one state -- Florida -- has designated health care law as an area of specialization. Several states (Alabama, Alaska, Delaware, Florida, Hawaii, Idaho, Maine, Mississippi, New Jersey, North Carolina, South Carolina, South Dakota, Tennessee, Vermont and Wisconsin) have designated Medical Professional Liability as a specialization area. However, these designations have been accomplished mostly through privately accredited certification programs.

Practice specialization is the bar-approved process through which an attorney can obtain a designation as a specialist in a certain area of the law. In the 1970s, the American Bar Association began to encourage the certification of specialties through pilot programs in California and Texas. California now offers certification in the following practice areas: Appellate; Criminal; Estate Planning, Trust & Probate; Family; Immigration & Nationality; Personal & Small Business Bankruptcy; Taxation; and Workers Compensation. The Texas program has grown to include Administrative; Business Bankruptcy; Consumer Bankruptcy; Civil Appellate; Commercial Real Estate; Consumer & Commercial; Estate Planning & Probate; Family; Farm & Ranch Real Estate; Criminal; Immigration & Nationality; Juvenile; Labor & Employment; Oil, Gas & Mineral; Personal Injury Trial; Residential Real Estate and Tax specialization.

There are three major sources of certification: 1) state-sponsored certification plans (Arizona, California, Florida, Louisiana, Minnesota, New Jersey, New Mexico, North Carolina, Ohio, South Carolina and Texas); 2) private organizations with ABA-accredited certification programs (American Board of Certification, America Board of Professional Liability Attorneys, National Association of Estate Planners & Councils Estate Law Specialist Board , National Board of Trial Advocacy; National Elder Law Foundation); and 3) state-sponsored plans to accredit private certifiers ( Alabama State Board of Legal Specialization, Connecticut Legal Specialization Screening Committee, State Bar of Georgia, Idaho State Bar, Indiana Commission for CLE, Tennessee Supreme Court Commission on CLE, Minnesota State Board of Certification, Maine Board of Overseers of the Bar, and the Pennsylvania Bar Association).

The Texas Bar, through its Health Law Section, anticipates having a Health Law certification application, review process, and written exam available in 2002. The Texas Board of Specialization previously approved the section's application for specialization, and a public hearing on health law specialization was held during a June CLE meeting. The Texas Supreme Court must now review and consider the hearing report and comment. If the Supreme Court approves the report, the advisory committee will move forward with development of the final application, review, and exam.

Most certification plans are based on the following criteria :

1. Percentage of total hours devoted to work in the specialty area (usually 25%);

2. The number of years an attorney has been practicing in a certain area (usually 5 years or more);

3. Professional references;

4. A written exam (usually a day long test sometimes accompanied by an oral exam);

5. CLE requirements.

The benefits to be gained from certification as a specialist are numerous. Along with personal satisfaction, designated specialists are recognized as experts by other lawyers, which may result in increased referrals. Specialists are allowed to publicize their certification, which is a useful marketing tool. Billing rates for designated specialists are normally higher than for non-certified attorneys. In addition, consumers seeking to hire attorneys are served well by having access, via lists of specialists and attorney marketing, to useful information on attorney expertise, which can help consumers determine which attorney best fits their needs and preferences.

Specialization in health law is needed for the simple reason that the area of health law is experiencing unprecedented growth. The complexities of the medical profession, the relationships of providers, the newly created types of providers, the increase in malpractice claims and the explosion of new technology require a level of legal expertise far beyond the capabilities of the general practitioner. And although medical professional liability law is recognized by several states as a specialty, health care law is not solely limited to medical malpractice claims. It would behoove any attorney wanting to practice in the area of health law to make every effort to encourage his or her bar association to consider developing a program for health care law specialization.