by Holly Hayes For an article titled “Medical Malpractice Reform: The Role of Alternative Dispute Resolution” in the May 2011 Clinical Orthopaedics and Related Research, David H. Sohn JD, MD, B. Sonny Bal MD, JD, MBA “performed MEDLINE, PubMed, and Google Scholar searches with key words ‘medical malpractice’, ‘ADR’, and ‘alternative dispute resolution’ to obtain public policy studies, law review articles, case analyses, ADR surveys, and healthcare review articles” to better understand the role of ADR in the healthcare setting. Their research indicates: Early apology and disclosure programs report 50% to 67% success in avoiding litigation as well as substantial reductions in the amount paid per claim. Mediation boasts 75% to 90% success in avoiding litigation, cost savings of $50,000 per claim, and 90% satisfaction rates among both plaintiffs and defendants. Arbitration is viewed as less satisfying and less efficient than mediation but still more time- and cost-effective than litigation. The current legal environment is favorable to ADR with recent court decisions upholding pretreatment arbitration clauses. The main obstacle to ADR is the mandatory reporting requirement of the National Practitioner Data Bank (NPDB). The National Practitioner Data Bank (NPDB) is “intended to improve the quality of health care by encouraging State licensing boards, hospitals, professional societies, and other health care organizations to identify and discipline those who engage in unprofessional behavior; to report medical malpractice payments; and to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from State to State without disclosure or discovery of previous medical malpractice payment and adverse action history. Adverse actions can involve licensure, clinical privileges, professional society membership, and exclusions from Medicare and Medicaid”. Drs. Sohn and Bal concluded that ADR has the potential to reduce costs while increasing both patient and provider satisfaction. They report that easing NPDB reporting requirements could result to wider acceptance and use of ADR among physicians. 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.

by Renée Kolar USADA’s adjudication process relies on an American Arbitration Association (AAA)/Court of Arbitration for Sport (CAS) arbitrated hearing under the modified AAA Commercial Rules. For a complete listing of USADA protocol and policy documents, visit the Resources section of the USADA website. The first step towards the USADA adjudication process occurs when a laboratory reports an Adverse Analytical Finding on an A Sample for a Prohibited Substance (See World Anti-Doping Code for a list of prohibited substances). USADA will then notify the Athlete or other Person that they have three days in which to accept a Provisional Suspension. USADA may for good cause shorten the period by two days or lengthen it by four. United States Anti-Doping Agency, Protocol for Olympic and Paralympic Movement Testing § 11 (2009) [hereinafter USADA Protocol]. If the Athlete or other Person accepts a Provisional Suspension the Athlete’s case will proceed on the Anti-Doping Review Board Track. Id. at § 12. If the Athlete does not accept the Provisional Suspension proposed by USADA by the deadline and if an involuntary Provisional Suspension is not imposed, the Athlete’s case will proceed on the Expedited Track. Id. Related Posts: Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012 Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012 Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.  

Today, we continue to cover the Lance Armstrong lawsuit against the U.S. Anti-Doping Agency (USADA). Armstrong v. Tygart et al, No. A-12-CA-606-SS. The U.S. District Court for the Western District of Texas, Austin Division, has set a hearing for August 10, 2012 to decide whether the Court should enjoin Defendants from enforcing an arbitration deadline against Armstrong while the lawsuit progresses. Read the Order here. Stay tuned! Related Posts: Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012

By Renée Kolar On July 9, 2012 Lance Armstrong filed a lawsuit and a motion for a Temporary Restraining Order (TRO) in the Western District of Texas in an attempt to shut down the USADA case. (read the Complaint and TRO) Order Dismissing the Case However, six hours later, the Court dismissed (without prejudice) Armstrong’s suit in a strongly worded Order. The Court noted, “Contrary to Armstrong’s apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism.” “This court is not inclined to indulge Armstrong’s desire for publicity, self-aggrandizement or vilification of Defendants, by sifting through 80 mostly unnecessary pages in search of the few kernels of factual material relevant to his claims,” the Court said. (read the Order here) Armstrong was allowed to re-file an amended complaint within 20 days of the Court’s order- and he did the next day. The Amended Complaint Armstrong’s Amended Complaint of July 10, 2012 (read the Amended Complaint here) requests that the court find in favor of Armstrong and declare: (1) Armstrong has no valid, legal or enforceable arbitration agreement with USADA that authorizes USADA to compel arbitration; (2) the Defendants’ have tortiously interfered with contract; (3) Defendants have violated fifth amendment due process requirements; and (4) Defendants have violated common law principles of due process. No Valid Arbitration Agreement Armstrong asks the court to declare that USADA may not compel to arbitration because Armstrong has no valid, legal or enforceable arbitration agreement with USADA. Armstrong argues that: 1) The International License Applications with Union Cycliste Internationale (UCI) that Mr. Armstrong signed constituted a contract to which USADA is neither a signatory nor a party. 2) Defendants purport to bring charges under the UCI Anti-Doping Rules yet Defendants have no agreement to arbitrate under these disciplinary proceedings nor do they have the jurisdiction without a preliminary determination by the UCI that a doping violation has occurred. In this case, none of the requirements for delegation of authority to USADA have been met. 3) Defendants are bringing charges for a period between 1996 and 2005, yet Mr. Armstrong’s licensing agreements prior to 2004 made no reference to USADA and contained no agreement conferring any authority on USADA. 4) Even after 2004, UCI continued to retain jurisdiction over Doping Control relating to testing at international events and testing performed by UCI outside of competition. The charges brought against Mr. Armstrong for a UCI test done in 2001, 2009 and 2010 therefore remain under the control of the UCI. 5) The alleged arbitration agreement is unconscionable. 6) USADA arbitration will not provide remedies equal to those available in court thus depriving Armstrong of substantive rights available in court. 7) There was no meeting of the minds between Armstrong and USADA on the alleged arbitration agreement. Armstrong’s agreement was with UCI, not USADA. 8) By limiting the choice of arbitrators and training its own arbitrators, USADA has retained essentially the exclusive right to select the potential arbitrators in this matter. 9) There is inadequate consideration for the alleged arbitration agreement. Tortious Interference Mr. Armstrong claims that at all relevant times to this Complaint, he had a contractual and business relationship with UCI and that contract should govern the matters at issue. This contractual and business relationship included, but is not limited to: (1) UCI’s control over results management, (2) UCI’s exclusive jurisdiction over alleged doping violations by Mr. Armstrong prior to 2005; (3) its exclusive jurisdiction over the drug tests upon which USADA relies including tests in 2001 and 2009–10; (4) its authority to delegate disciplinary responsibility to USA Cycling; (5) its duty to review proposed disciplinary proceedings against its license-holders; (6) its obligation to review the evidence and determine whether it constitutes reliable means of proving an anti-doping violation before any anti-doping charge is brought against Mr. Armstrong; (7) UCI’s exclusive jurisdiction and obligation to determine whether to authorize any disciplinary proceedings against Mr. Armstrong; and (8) UCI’s obligation to abide by the eight-year statute of limitations applicable to any alleged charge against Mr. Armstrong. Armstrong argues that by proceeding with its charges in contravention of the UCI rules, USADA has tortiously interfered with UCI’s performance of its obligations. The result, he alleges, has caused UCI to be in breach of its obligations to Mr. Armstrong. Armstrong contends that USADA had actual knowledge of Mr. Armstrong’s contract and business relationship with UCI and that USADA’s interference with this relationship was willful and intentional. Armstrong claims that USADA’s willful and intentional acts have proximately caused him damage and, unless enjoined, will continue to cause him irreparable harm for which there is no adequate remedy at law. Fifth Amendment Due Process Armstrong asserts that USADA acts under the color of the State in that, among other things, the U.S. government (1) was instrumental in the creation of USADA, (2) relies on USADA to carry out its obligations under an Article II international treaty (the International Convention Against Doping in Sport), (3) USADA acts as a regulator under an express grant of power from Congress, (4) the federal government provides a substantial portion (approximately two-thirds) of USADA’s funding, and (5) USADA otherwise fulfills functions ordinarily reserved exclusively to the State. Armstrong claims that Defendants further act under color of state law in that, among other things, the charges brought against Mr. Armstrong by Defendants are based on evidence gathered as part of a joint two-year investigation with the United States government to investigate and bring criminal and anti-doping charges against Mr. Armstrong. He contends that Defendants worked hand in hand with the FBI, the DOJ’s Office of Criminal Investigation, the FDA, and the US Postal Service Office in joint coordinated activity with the State and its agents designed to develop and support the charges Defendants now seek to assert against him. According to Armstrong, the rights afforded him in the fifth amendment of the U.S. Constitution, protecting against abuse of government authority in a legal procedure, have been […]