By Holly Hayes The Joint Commission (TJC) has patient care standards regarding patient rights. Standard RI.01.01.01 states: “The hospital respects, protects, and promotes patient rights.” The standard is scored by Elements of Performance (EPs) which include: 4. The hospital treats the patient in a dignified and respectful manner that supports his or her dignity. 7. The hospital respects the patient’s right to privacy. Even with those standards in place, The Los Angeles Times reported this week that some hospital staff members are using social networking to discuss patients on Facebook. Many hospitals are adopting no-tolerance policies for the release of patient information online, which covers everything from patient names to seemingly innocuous details such as weight. Los Angeles County’s Department of Health Services, for example, requires employees to sign an agreement that they will not release patient information through any non-county website. “If you’re giving any data about a patient at all, you’ve breached the privacy,” said Pam Lane, vice president of health informatics with the California Hospital Assn. “People are doing it and they are losing their jobs.” The state does not track online breaches of patient privacy separately from other breaches. So far this year, 686 breaches of patient privacy have been reported at hospitals statewide and substantiated by investigators at the California Department of Public Health, including four by healthcare workers. A number of the nation’s leading hospitals, including Cleveland Clinic and the Mayo Clinic, are raising awareness among their staff about how patient privacy protections such as the Health Insurance Portability and Accountability Act (HIPPA) apply online. “We already have guidelines; social media is simply another form of communication. It’s no different from e-mail or talking to someone in an elevator,” Ed Bennett (director of Web strategy at University of Maryland Medical System) said. “The safe advice is to assume anything you put out on a social media site has the potential to be public.” Let us hear your thoughts on patient privacy and social media. 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.

S.I Strong, Associate Professor of Law at the University of Missouri and contributor to this blog, wrote recently the interesting article International Commercial Arbitration: Special Skills, Special Sources, American Review of International Arbitration, Vol. 20, No. 2, 2010. Professor Strong discusses practical issues confronting young attorneys in international commercial arbitration. Here is an excerpt: I. INTRODUCTION International commercial arbitration is an advocacy-oriented endeavor, with parties engaging particular lawyers precisely because the parties believe that their chance of success increases proportionally with the skill and experience of their advocates. Clients are not alone in this perception of expertise – arbitrators and lawyers have also indicated that a good advocate makes a material difference in the outcome of a dispute. Given the central role that advocacy plays in arbitral success, it is ironic how little practical issues are discussed in legal scholarship. Instead, journals and texts are filled with doctrinal research, with other forms of inquiry, such as theoretical analysis and empirical studies, appearing to a lesser extent. While it is true that some pieces exist on best practices in advocacy, they appear most frequently in practitioner-oriented books or periodicals, rather than in the more rigorous academic journals, and tend to focus nearly exclusively on oral skills. Discussions concerning advocacy in international commercial arbitration, particularly regarding research and writing, are particularly sparse. Some may say there is little need for scholarly work regarding written advocacy because lawyers obtain the necessary skills through other means, such as law school, continuing legal education and mentorship. While this may be true of domestic litigation skills, it is not the case with respect to international commercial arbitration, where traditional methods of practical training are minimal at best and non-existent at worst. The situation is particularly dire with respect to matters concerning research sources and methodologies. This is highly problematic, since the legal authorities used in international commercial arbitration are unique, and newcomers to the field often do not know that certain materials exist or how to find them. This puts inexperienced lawyers at a distinct disadvantage, since one cannot build a solid legal argument without the underlying authorities. Furthermore, the best written submissions in this area of law adopt a purposeful blend of common-law and civil-law techniques. Any advocate who is unaware of how lawyers from different systems view legal authority will be unable to craft arguments that demonstrate the kind of sophistication and complexity that are the hallmarks of a good international practitioner. Again, this puts newcomers to the field at a comparative disadvantage. Fortunately, it is relatively easy to remedy these problems by increasing the cross-cultural dialogue about the different strategies that can be used to produce exemplary written submissions in international commercial arbitration. Doing so will help preserve the distinctive aspects of this area of law and ensure that the process remains as straightforward and cost-effective as possible by avoiding inappropriate legalism based on national court practices. This article attempts to fill this gap in the literature by proceeding as follows. First, section II defines the scope of the problem, beginning with the likely reasons behind the dichotomy between doctrinal and practical education and scholarship. This portion of the article also explains why it is important that experts in international commercial arbitration provide guidance on best practices in legal research. Section III provides the first step toward increasing access to the necessary authorities and developing the necessary practical skills by describing how experienced advocates and arbitrators research and present legal arguments in international commercial arbitrations. Section IV concludes the article by identifying a number of areas regarding research and written advocacy that could benefit from increased attention from academics and scholar-practitioners in the international arbitral community. You may download the full article (for free) here. Other papers by Dr. Strong are here. Technorati Tags: ADR, law, arbitration

On July 21, 2010 the Supreme Court of Wisconsin decided Sands v. Menard, Inc., 2008AP1703. The employment discrimination case made national headlines because an arbitral panel awarded Sands, former general counsel for Menard, $1.6 million which included $900,000 in punitive damages. Furthermore, the panel ordered Sand’s reinstatement to her position with a salary of $175,000 per year plus a bonus (she previously earned $70,000 per year). The district and appellate courts affirmed confirmation of the arbitral award. Read our discussion of the appellate court decision here. The Wisconsin Supreme Court held that the arbitration panel exceeded its powers because the reinstatement award was in violation of strong public policy. The court stated, “[i]n this case, we conclude that by accepting reinstatement, Sands would be forced to violate her ethical obligations as an attorney and the use of  criminal attorneys for DWI could help people with criminal cases against them. The court vacated the reinstatement portion of the award and remanded the case to the circuit court for determination of an appropriate award of front pay. Under employment discrimination laws, front pay is a substitute for reinstatement. In the dissent, Chief Justice Shirley Abrahamson said the decision undermines the arbitration process and improperly extends the authority of the courts. He noted that “[i]t may well be that in some cases a direct conflict will arise between the mostly state laws governing the attorney-client relationship and the mostly-federal statutes and case law governing employment discrimination, including the provisions for reinstatement.” He added, however, that “the place to resolve novel and emerging questions of law is not in a court’s review of a private arbitration award.” Related posts: Court says Menard attorney should not get job, Scott Bauer, Associated Press (July 21, 2010) Citing Public Policy, Wis. High Court Bars Reinstatement of Fired Menard Lawyer, Debra Cassens Weiss, ABA Journal News (July 21, 2010) Counsel can’t be reinstated: Front pay is proper remedy for discrimination, David Ziemer, Wisconsin Law Journal (July 26, 2010) Technorati Tags: arbitration, ADR, law

The Singapore International Arbitration Centre (SIAC) released its new arbitration rules which took effect on July 1, 2010. The new rules bring the SIAC more in line with the rules at other arbitral institutions. Among the new features are the availability of an expedited procedure when the amount in dispute does not exceed $5 million, when the parties agree, or in cases of exceptional urgency. The rules also provide for the ability to appoint an emergency arbitrator to seek interim relief before the tribunal is formed. Click here for the SIAC Rules of 2010. Technorati Tags: ADR, law, arbitration