By Holly Hayes The Joint Commission (TJC) requires that all hospitals have a process in place to identify and assist staff physicians with health and behavior problems. A July study published in the Journal of the American Medical Association (JAMA) conducted by researchers from Massachusetts General Hospital found more than 31 percent of the 2,000 doctors who responded don’t turn in colleagues who are impaired or incompetent. The study surveyed nearly 3,000 doctors across multiple specialties. Read the full story, as reported by ABC news, here. The survey also found that 17 percent of doctors had encountered an impaired or incompetent colleague over the past three years, but only two-thirds of them actually turned those doctors in. Only 69 percent of doctors said they know how to go about reporting a compromised colleague. Lead study author Catherine DesRoches of the Mongan Institute for Health Policy at Massachusetts General Hospital told ABC News the fact that more than a third of physicians don’t agree that they have a responsibility to report doctor’s with problems is a “significant number” she finds troubling. “Self-regulation is the primary mechanism we use to make sure doctors that shouldn’t be practicing are not practicing,” said DesRoches. “That’s a key to protecting patients.” “This is a very important study, because it reminds us that we’re probably not doing what we should be doing,” said Dr. Virginia Hood, president-elect of the American College of Physicians and professor of medicine at The University of Vermont School of Medicine. “Our primary responsibility is always patient safety and what’s in the best interest of the patient, and when it appears that we’re not doing what we should be doing, it’s a matter of great concern,” she added. Doctors who are members of underrepresented minority groups, graduates of foreign medical schools and doctors in smaller practices were less likely to report an impaired or incompetent fellow doctor. There were three main reasons many doctors did not turn in their colleagues. “Twenty-three percent believed someone else was taking care of the problem, 15 percent didn’t think anything would happen and 12 percent feared retribution,” said DesRoches. The 36 percent of doctors who did not subscribe to reporting their colleagues included those who said they only “somewhat agreed” with their professional obligation to report compromised colleagues and also those who disagreed either somewhat or completely. “We just took ‘completely agrees’ and lumped everyone else into a ‘don’t completely agree’ group,” said DesRoches. The reason for that, she said, is because only complete agreement is considered to be consistent with ethical reporting standards set by professional medical societies. She also acknowledged that if these doctors were lumped into the “agree” grouping, many more of them would have been in agreement with their ethical obligation to report an incompetent or impaired colleague. In an accompanying editorial, Dr. Matthew Wynia of the American Medical Association’s Institute for Ethics argued that the authors see the glass as half-empty. “A solid majority of physicians (64 percent) ‘completely’ agreed that they are obliged to report all significantly impaired or incompetent colleagues and, presumably, some number of those who did not agree completely would have agreed ‘somewhat,’” he wrote. DesRoches also notes some of the survey’s limitations, including the effect nonresponders could have on the results. “We did weight our results, but these adjustments are not perfect,” she said. She also acknowledged that evaluating incompetence is very subjective. At least one other doctor agreed, saying that incompetence is not easy to judge. “It’s rare that you see a doctor who is completely incompetent,” said Dr. Rick May, vice president for clinical consulting at HealthGrades, an independent group that rates health care practitioners and institutions. “What’s more common is that you see a physician who’s incompetent when it comes to using a certain medication or performing a certain procedure.” To better understand the effects of disruptive behavior in healthcare, The Journal of Nursing Care Quality published the results of a qualitative study titled “Hospital RNs’ Experiences with Disruptive Behavior”. “Disruptive behavior affects the RN, patient, and practice setting. The nurses described impacts such as being distracted from patient care, taking a physical or emotional toll on them personally, and creating conflicts for them between meeting patient care needs and meeting the operational needs of the hospital. They also expressed concerns that disruptive behavior can decrease the quality of care, create risks to patient safety, delay the delivery of care to patients, and disrupt working relationships among team members.” Nurses also discussed the impact of disruptive behavior on retention. Forty-eight percent of participants said they knew a nurse who transferred to another unit or department because of disruptive behavior and thirty-four percent said they knew nurses who had terminated their employment because of disruptive behavior. For more on this study, read here. A survey published in November 2009 conducted by the American College of Physician Executives published almost one year after The Joint Commission began requiring health care facilities to implement zero-tolerance policies for disruptive behaviors, tells us there is still work to be done in this area. According to anonymous responses to a national survey of 13,000 physician and nurse executives, ninety-seven percent experienced unprofessional outbursts and overreactions, with the majority saying these happened several times a year and sometimes weekly. Physician and nurse executives respondents suggested solutions to decreasing disruptive behavior including: setting clear expectations, implementing consistent enforcement and focusing on teamwork. For more on this survey, read here. Mediation is one non-confrontational interaction strategy that can be implemented to resolve conflict, improve the working relationships of the parties involved and enhance teamwork and patient safety. We welcome your comments on this topic. 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.

Last week, we concluded the series “Questions Clients Have about Mediation” written by Kent B. Scott and Cody W. Wilson from Babcock Scott & Babcock. In case you missed these interesting posts, following are links to all of them: What is Mediation? What are the Advantages and Disadvantages of Mediation? Would my Mediation be Confidential? Will a Settlement in Mediation be Enforceable? How do we Get the Mediator to See it Our Way? When and Where Should we Mediate? How do we Get Started? Who Should I Bring to the Mediation? Is the Mediator Like a Judge? What Should I Bring to the Mediation? What Should I Wear to the Mediation? How Long Will the Mediation Last? What Happens in Mediation? Is There a Recipe for a Successful Mediation? Feel free to add more mediation questions and answers by typing them into the “Leave a Reply” box (below) and clicking on the “Submit Comment” button.

As readers may already know, last week, President Barack Obama signed into law the Restoring American Financial Stability Act of 2010 (a.k.a. the “Dodd-Frank Wall Street Reform and Consumer Protection Act”). The act, among other things, would give the SEC the power to ban or limit mandatory arbitration in certain agreements. House Versions: H.R. 4173 and Status; Senate Versions: S.3217 and Status. The final version is here. Following are some provisions related to arbitration: SEC. 748. COMMODITY WHISTLEBLOWER INCENTIVES AND PROTECTION. The Commodity Exchange Act (7 U.S.C. 1 et seq.) is amended by adding at the end the following: ….. ‘‘(n) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.— ‘‘(1) WAIVER OF RIGHTS AND REMEDIES.—The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment including by a predispute arbitration agreement. ‘‘(2) PREDISPUTE ARBITRATION AGREEMENTS.—No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.’’. SEC. 919B. STUDY ON IMPROVED INVESTOR ACCESS TO INFORMATION ON INVESTMENT ADVISERS AND BROKER-DEALERS. (a) STUDY.— (1) IN GENERAL.—Not later than 6 months after the date of enactment of this Act, the Commission shall complete a study, including recommendations, of ways to improve the access of investors to registration information (including disciplinary actions, regulatory, judicial, and arbitration proceedings, and other information) about registered and previously registered investment advisers, associated persons of investment advisers, brokers and dealers and their associated persons on the existing Central Registration Depository and Investment Adviser Registration Depository systems, as well as identify additional information that should be made publicly available. SEC. 921. AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION. (a) AMENDMENT TO SECURITIES EXCHANGE ACT OF 1934.—Section 15 of the Securities Exchange Act of 1934 (15 U.S.C. 78o), as amended by this title, is further amended by adding at the end the following new subsection: ‘‘(o) AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION.— The Commission, by rule, may prohibit, or impose conditions or limitations on the use of, agreements that require customers or clients of any broker, dealer, or municipal securities dealer to arbitrate any future dispute between them arising under the Federal securities laws, the rules and regulations thereunder, or the rules of a self-regulatory organization if it finds that such prohibition, imposition of conditions, or limitations are in the public interest and for the protection of investors.’’. (b) AMENDMENT TO INVESTMENT ADVISERS ACT OF 1940.—Section 205 of the Investment Advisers Act of 1940 (15 U.S.C. 80b–5) is amended by adding at the end the following new subsection: ‘‘(f) AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION.— The Commission, by rule, may prohibit, or impose conditions or limitations on the use of, agreements that require customers or clients of any investment adviser to arbitrate any future dispute between them arising under the Federal securities laws, the rules and regulations thereunder, or the rules of a self-regulatory organization if it finds that such prohibition, imposition of conditions, or limitations are in the public interest and for the protection of investors.’’. SEC. 922. WHISTLEBLOWER PROTECTION. (a) IN GENERAL.—The Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) is amended by inserting after section 21E the following: …. ‘‘(e) NONENFORCEABILITY OF CERTAIN PROVISIONS WAIVING RIGHTS AND REMEDIES OR REQUIRING ARBITRATION OF DISPUTES.— ‘‘(1) WAIVER OF RIGHTS AND REMEDIES.—The rights and remedies provided for in this section may not be waived by any agreement, policy form, or condition of employment, including by a predispute arbitration agreement. ‘‘(2) PREDISPUTE ARBITRATION AGREEMENTS.—No predispute arbitration agreement shall be valid or enforceable, if the agreement requires arbitration of a dispute arising under this section.’’. SEC. 1028. AUTHORITY TO RESTRICT MANDATORY PRE-DISPUTE ARBITRATION. (a) STUDY AND REPORT.—The Bureau shall conduct a study of, and shall provide a report to Congress concerning, the use of agreements providing for arbitration of any future dispute between covered persons and consumers in connection with the offering or providing of consumer financial products or services. (b) FURTHER AUTHORITY.—The Bureau, by regulation, may prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties, if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers. The findings in such rule shall be consistent with the study conducted under subsection (a). (c) LIMITATION.—The authority described in subsection (b) may not be construed to prohibit or restrict a consumer from entering into a voluntary arbitration agreement with a covered person after a dispute has arisen. (d) EFFECTIVE DATE.—Notwithstanding any other provision of law, any regulation prescribed by the Bureau under subsection (b) shall apply, consistent with the terms of the regulation, to any agreement between a consumer and a covered person entered into after the end of the 180-day period beginning on the effective date of the regulation, as established by the Bureau. SEC. 1414. ADDITIONAL STANDARDS AND REQUIREMENTS. (a) IN GENERAL.—Section 129C of the Truth in Lending Act is amended by inserting after subsection (b) (as added by this title) the following new subsections: … ‘‘(e) ARBITRATION.— ‘‘(1) IN GENERAL.—No residential mortgage loan and no extension of credit under an open end consumer credit plan secured by the principal dwelling of the consumer may include terms which require arbitration or any other nonjudicial procedure as the method for resolving any controversy or settling any claims arising out of the transaction. Technorati Tags: law, ADR, arbitration

By Peter S. Vogel Special Masters can help Judges and parties in eDiscovery disputes and also reduce the cost of litigation. Also managing eDiscovery can be improved by using eMediators who can help simply eDiscovery disputes and reduce motion practice. My recent article in the Texas Lawyer discusses some of the benefits of eMediation and Special Masters in eDiscovery. Over the past 20 years I have served as a Mediator and Special Master in computer technology and Internet lawsuits, and since there is electronic evidence in every case my experience is that Mediation conference and using Special Masters can make eDiscovery less expensive. Court Ruled that Special Master in Anna Nicole Smith Abused Trial Court’s authority A California defendant challenged Texas jurisdiction, but the Judge had not determined if the Court even had jurisdiction, as a result the trial court violated the Texas Special Master appointment Rules by authorizing the Special Master to get the defendant’s hard drive and conduct a a complete search. This was the second time that the same appellate court ruled that the trial court exceeded its authority to appoint a Special Master in this high profile case. There are always limits on the authority of what a Special Master can do in a case which should be spelled out in the Order Appointing the Special Master. Notwithstanding the outcome in this case surely we will see more cases with Special Masters since there is so much electronic evidence. Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.