Donald R. Philbin Jr., contributor to this blog, has written recently an article entitled Thankful for Unanswered Prayers? Unconscionability ‘Equilibrium,’ 27 Alternatives to the High Cost of Litigation 145 (Oct. 2009). As its title suggests, the article discusses the salient issue of unconscionability in arbitration agreements. Here is an excerpt: Collision? Or Coexistence? The issue: The states and the Supreme Court—and now Congress—are at odds over arbitration fairness. The problem: Who decides unconscionability? The law is hardly settled—but the nation’s top Court rejects petitions in cases that would re-examine and reassess, and which would provide Federal Arbitration Act certainty. The solution: It may be best left as it is, with a federal policy favoring arbitration. International practitioners still fear that the proposed Arbitration Fairness Act overreaches. Read the full article here. Edited by Russ Bleemer, Alternatives is a monthly newsletter published by the International Institute for Conflict Prevention & Resolution (CPR). CPR is offering a free copy of Alternatives. Find out more here. Technorati Tags: arbitration, ADR, law, legislation

by Holly Hayes Last month, President Barack Obama announced a plan (discussed here and here) for funding medical malpractice reform projects in order to explore ways to manage medical liability claims. Below is a press release from the Agency for Healthcare Research and Quality (AHRQ) about the grant funding process. AHRQ Announces Intent to Publish Grant and Contract Solicitations for Patient Safety and Medical Liability Reform Demonstration Projects Notice Number: NOT-HS-09-013 Key Dates Release Date: September 17, 2009 Issued by Agency for Healthcare Research and Quality (AHRQ) (http://www.ahrq.gov) Office of Extramural Research, Education, and Priority Populations Background On September 9, 2009, President Obama addressed a joint session of Congress to announce his proposals for what health insurance reform legislation should include. One component of such a plan includes investing in new ways to manage medical liability claims. As directed by President Obama, the Secretary of the Department of Health and Human Services (HHS) will launch a new demonstration initiative that will allow states, localities, and health care systems to test models that meet the goals and commitments to: put patient safety first and work to reduce preventable injuries; foster better communication between doctors and their patients; ensure that patients are fairly and quickly compensated for legitimate medical injuries, while also reducing the incidence of frivolous lawsuits; and reduce escalating liability premiums. Too many patients experience significant challenges with health care quality and patient safety, and injured patients are not well-served by the current medical liability system. According to the IOM report To Err is Human, between 44,000 and 98,000 patients die each year from medical errors. Patients who are seriously harmed from medical errors often wait too long for compensation. The correlation between lawsuits and negligent care is weak. A substantial proportion of cases associated with negligent care do not result in lawsuits, and a substantial proportion of lawsuits are not associated with negligent care. Many experts believe fear of liability is a substantial barrier to the development of transparent and effective patient safety initiatives in hospitals and other settings. The medical community reports serious problems with the medical liability system. Many physicians have experienced sharp increases in premiums for medical malpractice liability insurance. Many doctors believe that medical liability concerns lead to “defensive medicine”, which in turn may contribute to higher health care costs. With this notice, AHRQ is announcing the Agency’s intention to support a new demonstration initiative. AHRQ will fund demonstration grants and contracts and planning grants to states, localities, and health systems for implementation and evaluation of evidence-based patient safety and medical liability demonstrations. AHRQ will solicit applications for demonstrations that evaluate approaches to improve focus on improvements in patient safety and reduction in defensive medicine; provide fair and timely compensations to patients and families; reduction in malpractice premiums; and build capacity for systems that incorporate sustainable, reliable provider and practitioner approaches to mitigate risks to patients’ safety in health care settings, including enhanced physician accountability. Publication and Funding AHRQ anticipates grant and contract solicitations to be published beginning in October 2009, with funding to commence in early 2010. Inquiries Until the solicitations are published, AHRQ cannot provide additional information on their contents. Direct any general comments to: Kathie Kendrick Deputy Director Agency for Healthcare Research and Quality 540 Gaither Road Rockville, MD 20850 Telephone: 301-427-1200 E-mail address: Medicalliabilitydemos@ahrq.hhs.gov Technorati Tags: Tort Reform, Healthcare President Obama, speech September 9, arbitration, ADR, law, mediation 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.

As reported by the Texas Supreme Court Blog (thanks for the cite!) the Texas Supreme Court heard arguments today on the case NAFTA Traders, Inc. v. Margaret A. Quinn; from Dallas County; 5th district (05?07?00340?CV, 257 SW3d 795, 06?17?08). NAFTA Traders appeals the confirmation of an arbitral award in favor of Margaret Quinn in a sexual discrimination case under the Texas General Arbitration Act (TAA). The Dallas Court of Appeals relying on the U.S. Supreme Court decision in Hall Street v. Mattel Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008) held that “parties seeking judicial review of an arbitration award covered under the TAA cannot contractually agree to expand the scope of review and are instead limited to judicial review based on the statutory grounds enumerated in the statute.” (opinion is here) The issues to be decided by the Texas Supreme Court are: Whether parties to an arbitration agreement can contractually agree to limit an arbitrator’s authority under the TAA; and Whether parties to an arbitration agreement can contractually agree to expand the scope of judicial review of an arbitration award under the TAA. (links to ebriefs are here) On a related note and as readers probably know, there is a current circuit split as to whether the non-statutory ground “manifest disregard of the law” survives the U.S. Supreme Court holding in Hall Street. The Court of Appeals for the Fifth Circuit decided in Citigroup Global Mkts. Inc. v. Bacon, 562 F.3d 349, 2009 U.S. App. LEXIS 4543 (5th Cir. Tex. 2009) that only statutory grounds to vacate arbitral awards are valid. (read our analysis here) Some were hoping that the U.S. Supreme Court would step in and clarify the issue. The Court, however, denied certiorari this week to three “manifest disregard of the law” cases: The Coffee Beanery, Ltd. v. WW, LLC, 300 Fed. Appx. 415 (6th Cir. 2008); Grain v. Trinity Health, 551 F.3d 374 (6th Cir. 2008); and Comedy Club, Inc. v. Improv West Associates, 553 F.3d 1277 (9th Cir. 2008). (order list 558 U.S. is here) We will discuss the Texas Supreme Court decision once it comes out… Stay tuned to Disputing. Related Posts: Fifth Circuit Confirms International Commercial Arbitration Award (Jun. 22, 2009)

Texas Governor Rick Perry appointed today Justice Eva Guzman of the 14th Court of Appeals to serve on the Supreme Court of Texas. Justice Guzman will replace Justice Scott Brister, who left the court in September. As Don Cruse at the Supreme Court of Texas Blog points out, an appointed Justice does not have to be confirmed by the Texas Senate until the next session, so Justice Guzman can run for a six-year term in 2010. Read more at the Houston Chronicle and the Office of the Governor. Hat tip to the Hispanic Bar Association of Austin.