The American Academy of Orthopaedic Surgeons (AAOS) issued a Position Statement on Medical Liability Reform by David H. Sohn, JD, MD, and S. Jay Jayasankar, MD stating: “The AAOS believes that broad reforms are necessary to compensate negligently injured patients promptly and equitably, enhance patient–physician communication, facilitate improvement of patient safety and quality of care, reduce defensive medicine and wasteful spending, decrease liability costs, and improve patient access to care.” The article references a survey of reasons patient’s sue, listing money as the fourth reason “behind disclosure, desire for apology, and prevention of future errors”. The authors state that when a case is litigated only 28 cents of each dollar goes to the plaintiff making litigation inefficient. It is also expensive. “The U.S. Department of Health and Human Services estimates that between $76 billion and $122 billion is spent per year directly on medical liability litigation. The indirect costs of litigation, due to defensive medicine, are believed to be at least equally costly.” The authors argue: Negotiation, early apology, mediation, and arbitration all offer more flexibility than traditional litigation. These methods also allow plaintiffs to hear explanations behind errors or complications, to hear a physician express remorse, and to settle claims for far less than litigation. After instituting early apology programs, for example, the University of Michigan saw yearly claims drop from 262 to 82 and the University of Illinois saw a 50 percent reduction in malpractice filings. The Colorado COPIC program uses ADR techniques to whittle settlement awards to a startlingly low average of $5,000. Mediation, in particular, has very high satisfaction rates among both plaintiffs and defendants. With mediation, plaintiffs feel they receive what they really want: an explanation and an apology. Interestingly, physician defendants also appreciate the open forums encouraged in ADR. It gives them an opportunity to explain to the plaintiff that they did nothing wrong, that complications are inherent risks of medicine, and that they still feel sorry that the complication occurred. For more blog posts supporting alternative dispute resolution in healthcare see here and here. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.

Further to the recent publication of the Leveson Report, “An inquiry into the culture, practices and ethics of the press”, the Chartered Institute of Arbitrators (CIArb) is well placed to provide arbitral services to a newly created independent regulatory body. In his report published on 29 November 2012, Lord Justice Leveson proposed the use of arbitration as an “essential component” in resolving civil disputes involving the press and the establishment of an independent press regulatory body underpinned by statute, to replace the current self-regulated body the Press Complaints Commission. As an independent, not-for-profit, UK registered charity working in the public interest, CIArb appoints Arbitrators to solve disputes across the business community, using specialist Panels of experts with ‘high reputation and ability’ who can act as Arbitrators within a framework of independence, integrity and impartiality. With this immediate access to professional dispute resolvers of the calibre and standing required for such a high profile initiative, the newly created body could draw on the experience of a leading, global institution such as CIArb. CIArb would like to extend its support to an effective, cost-only arbitral process as part of a newly created regulatory body. The Rt Hon Sir Anthony Evans, FCIArb, C.Arb and panel member of CIArb’s Dispute Appointment Service (DAS) said: “I welcome this opportunity for an experienced arbitration body such as CIArb to demonstrate that Lord Justice Leveson`s aim of a specialist and independent body “striking out unmeritorious claims and quickly resolving the others” can readily be achieved by combining the established principles of arbitration with the flexible procedures permitted by the Arbitration Act 1996. “Existing procedures for appointing arbitrators and for administering the arbitrations can be adapted as necessary. Overall supervision by the Courts will ensure that procedures are fair to both parties and the outcome just. The result could be a major contribution to the development of arbitration as a primary method of dispute resolution, and to the governance of our society.”   For further information, please contact: Lucy Chakaodza Communications and PR Executive E: LChakaodza@ciarb.org T: 020 7421 7473

The Supreme Court of Texas conditionally granted mandamus relief because the trial court abused its discretion by incorrectly applying section 171.096(b) of the Texas Civil Practice and Remedies Code instead of applying 171.096(c) of the Texas Civil Practice and Remedies Code. Background In In re Lopez, 372 S.W. 3d 174 (June 8, 2012), survivors of a nursing home resident filed a demand for arbitration of survival and wrongful death claims against the nursing home arising out of allegedly negligent care. Even though the arbitration agreement provided that the arbitration be conducted in Victoria County, Texas, the parties agreed to arbitrate the dispute in front of a specific arbitrator in Travis County, Texas. The arbitrator ruled in favor of the survivors. The nursing home then filed an application in Victoria County to vacate the award. The survivors filed a motion to transfer venue to Travis County under section 171.096(c) of the Texas Civil Practice and Remedies Code (TCPRC). The trial court denied the survivors’ motion to transfer venue, agreeing instead with the nursing home that section 171.096(b) of the TCPRC applied and Victoria County was the proper venue. The survivors petitioned for writ of mandamus. The court of appeals also denied relief. Supreme Court of Texas The Supreme Court of Texas addressed whether section 171.096(b) or 171.096(c) applied. Looking to the Legislature’s choice of language in the statute, the Court noted that subsection (c)’s language, “has been held,” indicates that it applies when an arbitration hearing has already taken place. The language in subsection (b), “is to be held,” indicates that it applies when the parties have an agreement and an arbitration hearing has not yet taken place. The Court concluded that the trial court clearly abused its discretion by applying section 171.096(b) instead of 171.096(c) since an arbitration hearing had already been held. The Court also stated that its interpretation does not interfere with the parties’ ability to agree to venue provisions. However, in this case, the parties chose to disregard their previous contractual agreement. Because section 171.096(c) is a mandatory venue provision that the trial court failed to apply, the Court conditionally granted mandamus relief and directed the trial court (1) to vacate the previous order and (2) grant the survivors’ motion to transfer venue.  

A thesis for the Georgetown University Master of Arts in Conflict Management by Paul Charlton, B.A. titled “Indicators of success: an exploration of successful conflict management in U.S. hospital settings” can be found on the Georgetown University website. The paper examines the definition of success in managing healthcare conflicts. The paper divides conflict into four categories based on the parties involved and introduces a framework for analyzing dynamics of the different conflict management systems used in healthcare. The categories of parties involved include: patient-provider; provider-provider; provider-administration and patient-payer. Literature reviews and interviews with ten conflict management practitioners in the healthcare setting helped Mr. Charlton analyze the four categories and determine key features of the conflicts and the responses to conflict associated with them. The interviews explored “definitions of success, clarified training and research needs, and identified emerging trends in the field”. A summary of the paper states:Important trends in healthcare conflict management identified by the research include a shift away from interest-based negotiation models towards relationship-based approaches to conflict management; a reorientation towards prevention and early intervention, raising expectations that healthcare providers take the lead on conflict engagement and increasingly supplanting third-party intervention models; a push to include conflict management training in health professional schools; and utilization of a nested training-mentoring-communities of practice approach to developing healthcare providers’ conflict management skills. Mr. Charlton’s research includes the suggestions that positive benefit of conflict management in healthcare can be obtained by increasing collaboration between healthcare providers and ADR professionals on training design, integrating conflict management systems with Human Resources and leadership, and ensuring conflict management systems are visible and understood by staff.