By Holly Hayes Recently, I had the privilege of hearing Robert Wachter, MD speak. He is the Professor and Associate Chairman of the Department of Medicine at the University of California, San Francisco and an expert in the field of patient safety. He spoke about The Joint Commission’s (TJC) recent change in focus, from Safety Goals of the past that included “avoid using high risk abbreviations (those that could have two meanings)” to the Safety Goals of the present, for example, “better leadership” and “dealing with disruptive physicians”. Dr. Wachter applauds TJC shift, but believes it is difficult to regulate the new safety goals that focus more on the “culture” of an organization. Disruptive behavior has been the topic of two of our blog posts, read more here and here. Dr. Wachter, who is also Editor of the Agency for Healthcare Research and Quality (AHRQ) Morbidity and Mortality (M&M) Rounds on the web interviewed Gerald B. Hickson, MD, one of the world’s leading experts on physician behavior and its connection to clinical outcomes. Read the full interview or listen to the podcast here. Dr. Hickson stated, research has been done examining factors contributing to adverse outcomes, the link between poor communication skills and poor outcomes is clear. When medical team members don’t play well together—sometimes because a physician engages in disruptive behavior—we are more likely to fail to achieve our intended outcomes and therefore experience more errors. The Joint Commission sentinel event alert, Behaviors That Undermine a Culture of Safety, helped focus attention on the impact of nonprofessional conduct and the need for hospitals to have a plan. But at the end of the day, it is still about local leadership. This is what we refer to as the question of implicit versus explicit culture. It is also about developing a process, establishing a surveillance system, using a tiered intervention strategy, training individuals to deliver the message, and providing the appropriate resources to help those who are identified. The Joint Commission alert reminds us that we need to address a challenge, not simply write a new conduct policy so we can pass a review. To address nonprofessional conduct, we use a ‘disruptive behavior pyramid’ to help us match circumstances with the appropriate level of intervention. The pyramid is based on a foundational concept that the vast majority of team members never demonstrate any disruptive behaviors. That’s important because when leaders are beginning to contemplate addressing the challenge of disruptive behavior, they need to understand that the vast majority of people who walk in the door are outstanding. In fact, we honor outstanding colleagues by addressing colleagues who need a little help. Therefore, whenever an ‘event’ is reported, we recognize that there may be two sides to the story. Sometimes patients have encounters when they believe providers responded in nonprofessional ways. Whenever possible, physicians need to have those events brought to their attention through an informal ‘cup of coffee’ process. It’s not a control contest. It’s simply a way for a medical group to say, ‘We want you to know what the patient shared.’ The individual physician involved needs to understand that the complaint is based on the patient’s perception, which may or may not have merit, and we want the provider to know. The problem is that when an event occurs, does it represent an anomaly or just one more event that identifies a pattern of disruptive behavior? We believe that patients and other members of the health care team serve an important surveillance role. Their eyes and ears are incredibly effective in identifying problems if organizations are committed to listening, recording observations, and looking for patterns. Once a pattern is suspected, there needs to be action. So as an example, at Vanderbilt we routinely code all unsolicited complaint reports and assign the complaints to 34 categories. The complaints are aggregated, and those physicians with more than their fair share receive a letter requesting a visit with a trained peer messenger. ‘Bob, for whatever reason, you seem to be associated with more complaints than the vast majority of your colleagues. I’m not here to ascertain why. My goal is not to tell you what to do, but suggest that you review the material I am sharing with you and reflect on what families are saying about your practice. Furthermore, follow-up will occur in a defined number of months.’ The process needs to be fair and apply to all members of the team. In addition, we believe that messages about patterns should be delivered by a trained physician peer messenger. One mark of a profession is its self-regulating entity. One way we demonstrate our commitment to our profession is to sit down and share with our high-risk colleagues. The peer messenger is able to say, “Good colleague, 50% of our physicians don’t get any complaints. Some get an occasional complaint. But, Bob, you get more complaints than 95% of all our colleagues, and I thought you would want to know.’ There needs to be a written plan to define expectations for the high-risk physician, what the identified deficiencies are, what interventions will occur, how success will be measured, and what the consequences are for failure to respond. We welcome your comments on addressing disruptive behavior in health care. 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 Glen M. Wilkerson Last Friday, the Texas Supreme Court handed down another arbitration case in In Re Odyssey Healthcare. P worked at hospice. She had employment agreement with non-subscriber (no worker’s compensation) that included an arbitration provision. She slipped at the home of a patient. P lived and accident occurred in El Paso. The Arbitration language provided: Panel of arbitrators would be from Dallas County. The Court compelled arbitration: 1. Agreement was not unconscionable because the panel was selected from Dallas. Party resisting arbitration had burden of showing unconscionability due to cost. Further, arbitrator has power to move the proceeding. It was unclear whether the agreement required the arbitration to be in Dallas although testimony from the D representative stated that they “always” arbitrate in Dallas. 2. The non-waiver in the Labor Code did not apply. Arbitration does not waive any substantive right. 3. Provision does not violate the 10th Amendment. Compliance with the Federal Arbitration Act would NOT directly impair Texas governmental functions. 4. The promises in the agreement were not illusory. Mandamus was granted to compel arbitration. There was also a provision in the agreement which stated – – when going to the doctor: employees must “allow an authorized representative of the Company to go with you to appointments with health care providers.” The Supreme Court did NOT rule on this provision and stated in footnote #1 that the fact that this provision might be NOT enforceable did not go to the enforceability of the arbitration provision as a whole. The court said in Footnote #2: “The trial court also found unconscionable a provision in the agreement that employees must “allow an authorized representative of the Company to go with you to appointments with health care providers.” However, in considering an arbitration clause, unconscionability “must specifically relate to the [arbitration clause] itself, not the contract as a whole, if [unconscionability is] to defeat arbitration.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001). Therefore, we express no opinion as to this determination of unconscionability, as it does not relate to whether to enforce the arbitration clause at issue.” (Emphasis added) Technorati Tags: law, ADR, arbitration Glen M. Wilkerson is a shareholder at Davis & Wilkerson, P.C. where he focuses on the areas of Personal Injury Law, Insurance Law & Litigation, Construction Law & Litigation, Commercial Litigation, Civil Litigation, and Professional Liability. Mr. Wilkerson holds a J.D. from The University of Texas and a B.S. from The University of Texas-Arlington. He may be reached at: gwilkerson@dwlaw.com.

By Holly Hayes Last week, I had the opportunity to attend the University of Texas “Innovation in Health Care Delivery Systems: Maintaining Quality and Reducing Costs Through Management and Information Technology”. One breakout session featured Donde Plowman, Ph.d., Business Professor and Department Head from the University of Tennessee. She has recently undertaken a study to increase the relevance of health services research to leaders in the health field. She asked health care CEOs for their general impressions of the current state of health services research and they responded as follows: 1. You don’t research what we care about. 2. Your models are too simple. 3. Your models are too general. Dr. Plowman then asked, what do you care about? The CEOs responded: staffing, evidence-based medicine, information technology, data/benchmarking, trust building, communication and leadership. Dr. Plowman focused on leadership stating it is more of a “behavior than a role and more of a process than a person”. She spoke about the opportunity leaders have to create organizations where innovation can occur. One aspect of innovation in organizations, she believes, is the presence of conflict. So often, leaders are responsible for reducing conflict, but Dr. Plowman argues, conflict is often where innovation comes from. She states, perhaps conflict in the organization means there is life in the organization. For more on Dr. Plowman’s research on how organizations change, read here. Dr. Plowman’s presentation prompted me to think about the role of conflict in organizations. Physician Executive magazine published the “Conflict management checklist: a diagnostic tool for assessing conflict in organizations”. See the full article here. The article agrees with Dr. Plowman’s assessment and says: “Depending on how the conflict is managed, the experience can be growth enhancing for the individuals involved or it can be destructive to relationships and self esteem. Conflict well managed can tap the creativity and problem-solving skills of colleagues, taking advantage of different gender, cultural, and role perspectives to create mutually beneficial solutions. Conflict poorly managed or consistently avoided reduces productivity, undermines trust, and may spawn additional conflict.” THE CONFLICT MANAGEMENT CHECKLIST is summarized: I. Identify the critical information: A. Define the conflict situation B. Organization factors C. Personal factors II Ask yourself these questions: A. Whose problem is this? B. How does my behavior contribute to the dynamics of the conflict? C. What elements of the situation am I able and willing to change? D. What are the time and resource constraints? E. What matters most to me/to the other party in this situation? F. What is at stake for me/for the other party in this situation? III Steps to facilitate your personal effectiveness in a direct approach to the conflict situation: A. Focus on issues relevant to the situation B. Define the situation in terms of a problem that calls for a solution, not as a threat that calls for attack C. Acknowledge feelings D. Ask for specific behavior change E. Identify what you are willing to do in the situation Let us hear your thoughts on the role of conflict in organizations. For more on this topic, see our series on conflict resolution in health care here (Part I, II, III, IV, and V). 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 S.I. Strong Although the decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. is being read by some as signaling the end of class arbitration –not just as we know it, but in virtually all possible forms– the opinion actually goes nowhere near that far. Instead, the 5-3 opinion can be largely limited to its facts, leaving significant questions unanswered. In some regards, the decision authored by Justice Alito is clear. In answering the question of “whether imposing class arbitration parties whose arbitration clauses are ‘silent’ on that issue” is permitted under U.S. federal law, the majority squarely focused on party intent, an approach with which few can argue. Justice Alito even goes so far as to indicate how that intent is to be demonstrated: when the parties have not “reached any agreement on the issue of class arbitration, the arbitrators’ proper task [is] to identify the rule of law that governs in that situation,” which in this case would have required reference “either to the FAA itself or to one of the two bodies of law that the parties claimed were governing, i.e., either federal maritime law or New York law.” However, the Supreme Court gives little to no guidance about what must be shown in the way of intent. Instead, in footnote ten of the slip opinion, the majority concludes that “[w]e have no occasion to decide what contractual basis may support a finding that the parties agreed to authorize class-action arbitration.” That statement will generate vast amounts of litigation in the lower courts. According to the majority, mere silence is not enough to support an order of class arbitration. Broadly worded arbitration agreements alone also appear insufficient to result in class proceedings. However, the Court appears to recognize that there are other ways of demonstrating intent, as through reference to state law, arbitral rules, etc. This approach is consistent with interpretive methods used in other jurisdictions (See S.I. Strong, The Sounds of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration in Cases of Contractual Silence or Ambiguity? 30 Michigan Journal of International Law 1017, 1055-83 (2009)). Nevertheless, the Court’s failure to provide detailed guidance on this question will prove problematic. In this dispute, the arbitrators were said to have improperly imposed their own policy choices on the parties, based largely on the fact that the panel considered published arbitral awards that discussed whether class proceedings were proper in other disputes (notably, Justice Ginsburg disputes the majority’s characterization of the panel’s interpretive approach). Because none of these awards were available when the parties had entered into the Vegoilvoy charter party, the Court concluded that the awards were irrelevant, since they could not go to what the parties’ intentions were at the time the transactions were concluded. This particular procedural posture may not arise in future cases, leaving open the question of whether published arbitral awards may also constitute persuasive authority on the question of contractual interpretation, at least in cases (unlike here) where the transaction was concluded post-Bazzle. (Green Tree Financial Corp. v. Bazzle, 539 U.S. 444 (2003)). Again, parties may very well litigate this issue, though it is more likely that arbitrators will simply take care when relying on previously published arbitral awards in their own awards. Although the central issue of Stolt-Nielsen is whether and in what circumstances class arbitration may be permitted in cases of contractual silence, the case raises several other points that will likely lead to confusion and litigation. First, doubt arises about the broad applicability of this decision. As Justice Ginsburg notes in her dissenting remarks, the majority opinion appears to exclude “contracts of adhesion presented on a take-it-or-leave-it basis,” i.e., consumer contracts. It may be that the majority wished to discourage class arbitration in the consumer or other contexts as much as it did in the realm of commercial and maritime disputes, but there is sufficient room for argument that the case does not go so far. Second, concerns arise as to whether self-proclaimed partial final awards such as the one at issue here are ripe for vacatur. Justice Ginsburg took the view that the majority did “not persuasively justify judicial intervention so early in the game or convincingly reconcile its adjudication with the firm final-judgment rule prevailing in the federal court system.” In particular, she noted that “[i]t cannot be true . . . that parties or arbitrators can gain instant review by slicing off a preliminary decision or a procedural order and declaring its resolution a ‘partial award,’” citing Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008). Again, the majority opened the door to further litigation on this issue by refusing to address the matter on the grounds that the parties in this dispute had waived this particular question. Instead, Justice Alito explicitly states that “[w]e express no view as to whether, in a similar case, a federal court may consider a question of prudential ripeness on its own motion.” This leaves a huge opening for claimant groups pressing for class proceedings. If claimants can forestall a motion to vacate these sorts of partial final awards (which are used under both the American Arbitration Association’s Supplementary Rules for Class Arbitrations and the JAMS Class Action Procedures), then defendants will be forced to wait to litigate any procedural decisions until after an award on the merits has been rendered. Interestingly, this approach – which favors speed and finality, two key attributes of arbitration – could result in increased settlement of cases as defendants seek to avoid going through the burden of merits hearings. Although commercial interests may bemoan the increased settlement rate, pointing to the possibility of settling a non-meritorious suit on financial grounds alone (despite the existence of empirical data suggesting that so-called frivolous suits are brought far less often than commonly believed, see, e.g., Elizabeth Chamblee Burch, Securities Class Actions as Pragmatic Ex Post Regulation, 43 Georgia Law Review 63, 85 (2008)), it would appear that the decision to settle in […]