by Holly Hayes The American Hospital Association (AHA) and the American Medical Association (AMA) sent a letter to hospital CEOs and medical staff presidents in November to remind them that The Joint Commission’s (TJC) recent revisions to hospital accreditation Standard MS.01.01.01 (formerly MS.1.20) will take effect April 1, 2011. The new standard is “designed to contribute to patient safety and quality of care through the support of a well-functioning, positive relationship between a hospital’s Medical Staff and Governing Body.” Jane Reister Conard wrote a detailed post for Disputing earlier this year about the new standard and its Element of Performance (EP) 10 which states “there must be a conflict management system to address disputes that arise between the medical staff and the medical executive committee.” She wrote: The inclusion of conflict management in the medical staff standard reaffirms The Joint Commission’s commitment to conflict management first set forth in the leadership standard (LD) 01.03.01, and more particularly stated in its EP 7. The leadership standard became effective January 1, 2009. In December, 2008, the American Health Lawyers Association (AHLA) ADR Task Force published its Conflict Management Toolkit, to assist accredited facilities in addressing their need to develop conflict management systems in order to comply with The Joint Commission leadership standard. As part of its commitment to public service, the AHLA provides a complimentary download of the Toolkit available here. While many of the Toolkit’s foundational principles and its conflict management guidance apply equally well to the development of a medical staff conflict management system for disputes between the medical staff and the executive medical staff committee, the medical staff should be wary of using a “cookie cutter” approach by accepting the transfer in total of a facility conflict management system based on LD 01.03.01, EP 7 to a medical staff conflict management system based on MS 01.01.01, EP 10. Among other distinctions, a discerning medical staff member (or facility manager) would note that MS EP 10 addresses disputes among members of a unique entity, the medical staff, and its leadership. The medical staff may not be recognized as a distinct legal organization, may not have a separate business structure, and may not have sole control of its funds. Because of this looser structure, accommodations in processes in the broader facility conflict management system are necessary to account for individual physician’s concerns. As mentioned above, the AHLA toolkit is an excellent resource for use by hospitals and medical staffs as medical staff bylaws are updated to accommodate MS.01.01.01. 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. Technorati Tags: Mediation

Last week, a second round of mediation was ordered in Cull and Cull v. Perry Homes. The ten-year-old dispute has already been the subject of an arbitration, a trial and a court-ordered mediation. Briefly, here are the facts of the case: In 1996, the Culls purchased a house from builder Perry Homes. After problems with the foundation and construction caused the appraised value of their house to plummet from more than $233,000 to $41,000 in only a few years, the Culls filed suit against both the builder and a home warranty company for shoddy construction. Only days before trial, however, the Culls moved to compel arbitration. The case was submitted to arbitration 14 months after the lawsuit was filed. After approximately one year of arbitration, the Culls were awarded $800,000 in damages. Perry Homes appealed the judgment to the Supreme Court of Texas in Perry Homes, et al. v. Robert E. Cull and S. Jane Cull. (Our discussion of the case may be read here.) In a headline grabbing twist, the Supreme Court vacated the arbitration award and sent the case back to the trial court. On March 1, 2010, a Fort Worth jury awarded the Culls approximately $58 million in Cull and Cull v. Perry Homes, et al. In mid-March, the trial court ordered the parties to mediation in an attempt to prevent appeals, but the mediation failed and no settlement was reached. After mediation, the court heard additional arguments regarding the jury award. In April, Disputing updated you on the case here. On November 24, 2010, a state district judge in Tarrant County ordered another round of mediation to be completed by December 29th stating, “The parties need to exhaust all efforts to finally settle this long-running dispute.” The judge also declared if no resolution can be reached, he will issue a ruling. Counsel for the Culls responded “I’m going to be surprised if it settles.” The date for mediation has not yet been set. You may read more about the recent mediation order here. Stay tuned to Disputing for continued updates on this most unusual of cases. Technorati Tags: law, ADR, arbitration, mediation

Voting is currently underway in the fourth annual ABA Journal Blawg 100. The Blawg 100 is compiled by the staff of the ABA Journal and as they state, it “is largely a favorites’ list.” Readers are invited to vote for up to 12 of their favorite blawgs from among the top 100 in each of 12 categories. The categories include: Court Watch Law Biz News Law Prof Plus Torts In Labor IP Law Criminal Justice IMHO Niche For Fun Legal Tech Blawgs must be listed in the ABA Journal’s Blawg Directory in order to be considered. More information about the nominees can be found here. Registration with ABAJournal.com is required in order to vote. Voting ends at close of business on December 30th and winners will be announced in January. According to the Blawg 100’s Frequently Asked Questions, short Blawg Amici testimonials from fans of particular blogs will also be sought by the ABA Journal in 2011. You may comment on the ABA Journal staff picks or nominate your favorite blawg here. Technorati Tags: law

The Corpus Christi Court of Appeals has affirmed an arbitration award stemming from an irrevocable family settlement agreement. In In re Cantu, No. 13-08-00708-CV, (Tex. App. — Corpus Christi, November 18, 2010), several disputes arose between the seven children of an elderly widow regarding her care and custody and the disposition of her estate. Following a court-ordered mediation, all seven of the widow’s children entered into an irrevocable family settlement agreement. The agreement contained an arbitration provision which stated the mediator would act as an arbitrator in the event “of any dispute regarding the interpretation and implementation of” the agreement. After a dispute arose, a trial court compelled arbitration. During the arbitration, “Appellants did not submit proposals, comments, or responses to the arbitrator regarding the issues subject to arbitration and did not personally appear at the arbitration, although they were represented by counsel at the hearing.” After “the arbitrator issued an eighteen page arbitration award, including extensive factual and legal conclusions, which generally collected and divided the estate,” the trial court confirmed the arbitration award. On appeal, appellants argued the arbitration award was invalid “because the arbitrator exceeded his powers and the award was obtained by undue means.” The Court of Appeals rejected this argument because it was previously addressed by the court in In re Cantu, (Tex. App. — Corpus Christi 2009), and “no new or additional facts, legal analysis, or argument that would change the disposition of this issue,” were presented. Appellants next argued: (1) the award should be vacated because the arbitrator exceeded his authority by enforcing contractual provisions that are prohibited by law; and (2) the award should be vacated because the arbitrator exceeded his authority by issuing an award that violates public policy. In addressing appellants’ first argument, the Appeals Court cited to Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008): In 2008, the United States Supreme Court held that the Federal Arbitration Act’s statutory grounds for vacating an arbitration award are the exclusive means to vacate an award, thus foreclosing any contractual ground for vacatur of an arbitration award. After the Corpus Christi court stated the applicability of common law vacatur was not determinative in the case at hand, the court addressed “appellants’ second issue, that is, whether the arbitrator exceeded his authority, without deciding whether the common law doctrines referenced therein remain applicable.” According to the court: Because of the breadth of the arbitration agreement, we conclude that the arbitrator was authorized to determine that the property rights at issue herein arose out of or were related to the agreement or involved a common question of law or fact. The court went on to hold that the arbitration agreement could not be overturned on public policy grounds. Finally, the Court of Appeals held the arbitrator did not abuse his discretion when he denied appellants’ request to continue the arbitration despite that writs of attachment had issued and appellants were under threat of arrest because: In requesting that the arbitrator continue the hearing, appellants did not argue that their presence and testimony at the arbitration was material, they made no offering of what testimony or evidence they planned to present, and they did not show that any such evidence could not be procured by means other than their attendance at arbitration. Further, as stated by the arbitrator, appellants had the opportunity to present testimony at the arbitration by affidavits, but failed to avail themselves of that opportunity. The Corpus Christi Court of Appeals affirmed the judgment of the trial court. Technorati Tags: law, ADR, arbitration