In January, Sherry Knowles and Anthony Prosser published an intriguing law review article titled “Unconstitutional Application of 35 U.S.C. § 101 by the U.S. Supreme Court,” 18 J. MARSHALL REV. INTELL. PROP. L. 144 (2018). 

Multinational technology company Google has reportedly announced it will no longer require mandatory arbitration of employee disputes with the company effective March 21, 2019.

A division of the United States Securities and Exchange Commission (“SEC”) has issued a no-action letter stating a New Jersey-based company, Johnson & Johnson, may omit a shareholder’s proposal to require mandatory arbitration of shareholder claims and prohibit class arbitration without becoming subject to an Agency enforcement action.

An ongoing legal battle between smartphone manufacturer HTC Corporation and networking and telecommunications company Ericsson offers a case study in the waiver of arbitration rights in the patent context.

by Holly Hayes The Joint Commission Journal on Quality and Patient Safety published a two-part article in the February 2011 edition entitled “A Strategic Approach for Managing Conflict in Hospitals: Responding to the Joint Commission Leadership Standard.” The articles by Charity Scott and Debra Gerardi were published as Part 1 and Part 2. Part 1 begins by reviewing Conflict Management Standard LD.01.03.01 which states, “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” Elements of Performance, or how The Joint Commission will score the standard, include: Development of a code of conduct that defines acceptable, disruptive, and inappropriate behaviors; and creation and implementation of a process for managing disruptive and inappropriate behaviors. Read more here. The abstract for Part 1 of the article states The Joint Commission has numerous standards and alerts that address: the significant impact of relational dynamics on patient safety and quality of care and the critical need for a strategic approach to conflict in health care organizations. Whether leadership conflicts openly threaten a major disruption of hospital operations or whether unresolved conflicts lurk beneath the surface of daily interactions, unaddressed conflict can undermine a hospital’s efforts to ensure safe, high-quality patient care. Developing a Strategic Approach to Conflict Management: How leaders manage organizational conflict has a significant impact on achieving strategic objectives. Aligning conflict management approaches with quality and safety goals is the first step in adopting a strategic approach to conflict management. A strategic approach goes beyond reducing costs of litigation or improving grievance processes—it integrates a collaborative mind-set and individual conflict competency with nonadversarial processes. Undertaking a Conflict Assessment: Conflict assessment should determine how conflicts are handled among the leaders at the hospital, the degree of conflict competence already present among the leaders, where the most significant conflicts occur, and how leaders think a conflict management system might work for them. Conclusions: Strategically aligning a conflict management approach that addresses conflict among leadership groups as a means of protecting the quality and safety of patient care is at the heart of LD.02.04.01. The abstract for Part 2 states the following: Background: A well-designed conflict management process for hospital leaders should both retain the positive benefits of constructive conflict engagement and minimize the adverse consequences that unmanaged conflict can have on patient care. Dispute system design (DSD) experts recommend processes that emphasize the identification of the disputing parties’ interests and that avoid reliance on exertions of power or resort to rights. In an emerging trend in designing conflict management systems, focus is placed on the relational dynamics among those involved in the conflict, in recognition of the reciprocal impact that each participant in a conflict has on the other. The aim is then to restore trust and heal damaged relationships as a component of resolution. Components of the Conflict Management Process: The intent of Standard LD.02.04.01 is to prevent escalation to formal legal disputes and encourage leaders to overcome their conflict-avoidance tendencies through the use of well-designed approaches that support engagement with conflict. The sequence of collaborative options consists of individual coaching and counseling; informal face-to-face meetings; informal, internally facilitated meetings; informal, externally facilitated meetings; formal mediation; and postdispute analysis and feedback. Conclusions: Every hospital has unique needs, and every conflict management process must be tailored to individual circumstances. The recommendations in this two-part article can be adapted and incorporated in other, more comprehensive conflict management processes throughout the hospital. Expanding the conflict competence of leaders to enable them to effectively engage in and model constructive conflict-handling behaviors will further support the strategic goal of providing safe and effective patient care. The Joint Commission Medical Staff Standard MS.01.01.01 addressing conflict will go into effect March 31, 2011. See the Standard here. American Medical News summarizes: The new standard states that the organized medical staff has the primary job of assuring quality and patient safety in the hospital while laying out a mechanism for physicians, the hospital governing body and chief executive to resolve differences over rules, policies and procedures. By spelling out these respective roles and responsibilities, the standard aims to foster collaborative working relationships to improve the quality of care. Medical staffs around the country will have to revise their bylaws in the next year to comply with the standard. Read more here. With regard to the management of conflict, The Joint Commission introduction to the new standard states: If conflict arises within the medical staff regarding medical staff bylaws, rules and regulations, or policies, it implements its process for managing internal conflict (see Element of Performance 10 — see below). If conflicts regarding the medical staff bylaws, rules and regulations, or policies arise between the governing body and the organized medical staff, the organization implements its conflict management processes, as set forth in the Leadership chapter. Element of Performance 10 states: The organized medical staff has a process which is implemented to manage conflict between the medical staff and the medical executive committee on issues including, but not limited to, proposals to adopt a rule, regulation, or policy or an amendment thereto. Nothing in the foregoing is intended to prevent medical staff members from communicating with the governing body on a rule, regulation, or policy adopted by the organized medical staff or the medical executive committee. The governing body determines the method of communication. The Joint Commission recognition of the value of teamwork in the medical setting and the mandate for the development of a conflict resolution process is summarized as follows: This collaborative relationship is critical to providing safe, high quality care in the hospital. While the governing body is ultimately responsible for the quality and safety of care at the hospital, the governing body, medical staff, and administration collaborate to provide safe, quality care. (Please see the Leadership chapter for more discussion of the relationship among the organized medical staff, administration, and governing body.) We welcome your comments on managing conflict in hospitals. Technorati Tags: Mediation Holly Hayes is a mediator at Karl Bayer, […]

by Holly Hayes The Association of periOperative Registered Nurses (AORN) published an article in their December journal titled, “Enhancing Communication in Surgery Through Team Training Interventions: A Systematic Literature Review.” The article quotes The Joint Commission’s (TJC) October 2007 Sentinel Events Statistics which stated communication failure was the root cause of approximately 70% of healthcare sentinel events. The TJC defined a sentinel event as an “unanticipated event in a healthcare setting resulting in death or serious physical or psychological injury to a patient.” The authors’ initial literature search identified 854 potential team training interventions; further screening reduced that number to 18 studies for review with 12 of those studies meeting the criteria for inclusion in the final sample. The results of the review, as described in the full text of the article, suggest overwhelming evidence that team training can improve team-based outcomes. The authors also conclude: The success of any team training intervention introduced into the clinical milieu lies in its sustainability over time. Clearly, the tendency for the effects of interventions to decay and for teams to regress over time also must be considered when defining the effectiveness of such interventions. Sustainability requires well-publicized institutional support and action at all levels in the organization and substantial commitment of institutional resources in the creation of team training policies and protocols, as well as regular retraining. We recommend that team training programs incorporate team coaches who are able to provide on-the-job support, similar to the TeamSTEPPS program. Equally important to this effort is the provision of timely and well-executed feedback on team- and patient-based outcomes. Team training is not a one-day or single-session event; therefore, teamwork behaviors need to be acknowledged and reinforced in mentoring sessions and annual performance evaluations. This will maintain behaviors over time and embed integration of teamwork into the organizational culture. In complex health care environments, teams do not exist in isolation and, as such, the effectiveness of any team training intervention cannot be appropriately evaluated without considering the larger system in which the team operates. As the healthcare industry continues to work to improve quality, decrease costs and respond to the Patient Protection and Affordable Care Act, the lessons gleaned from the literature review performed by Brigid M. Gillespie, RN, Cert Periop, BHlth Sc (Hons), PhD; Wendy Chaboyer, RN, BSc, MN, PhD; and Patrick Murray, M Mgt Av about OR team training may be applicable in other healthcare settings. We welcome your comments on this topic. Technorati Tags: 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.