Last week, DirecTV asked the United States Court of Appeals for the Eleventh Circuit to send a data privacy lawsuit that was filed against the company to arbitration.

The Eastern District of New York has ordered a negligence case that was filed against a digital currency exchange to arbitration. 

This month, the Governor of Massachusetts signed into law a number of amendments to current state data breach notification legislation.

Elayne E. Greenberg, Professor of Legal Practice, Assistant Dean of Dispute Resolution Programs, and Director of the Hugh L. Carey Center for Dispute Resolution at St. John’s University School of Law, has published “Hey, Big Spender: Ethical Guidelines for Dispute Resolution Professionals when Parties are Backed by Third-Party Funders,” Forthcoming in Arizona State Law Journal Spring 2019; St. John’s Legal Studies Research Paper No. 19-0002.

by Holly Hayes An article in the November 18, 2010 issue of the New England Journal of Medicine (NEJM) explores “Medical Malpractice Liability in the Age of Electronic Health Records.” The Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 authorized an estimated $14 billion to $27 billion to promote “meaningful use” of electronic health records (EHRs) by clinical providers. The authors of the article believe, “In the excitement over health information technology, some of the potential risks associated with it have received less attention, such as the possible effects of this technology on medical malpractice liability.” The article states: The liability implications of EHRs are likely to vary over the life cycle of the adoption of these systems. We begin by examining the period of initial transition to EHRs, during which predictable implementation snags may heighten providers’ liability risk. After this initial period, EHRs have the potential to reduce injuries and malpractice claims but will also create opportunities for error and will alter the context for proving and defending malpractice claims with the use of electronic information. Finally, the long-term effects of widespread adoption of EHRs include potential shifts in the legal standard of care that may not favor providers. The authors of the NEJM article advise health care providers to actively manage EHR-associated risks through the following steps: First, they can decline to sign contractual provisions that immunize the system developer. Second, they can select systems that are designed to minimize the risk of user error or misuse and maximize the ease of record retrieval. Third, organizations that adopt EHRs can ensure that clinicians receive thorough training, including education about organizational expectations regarding the use of the system. Hospitals can monitor the use of the system after implementation for obvious problems. Physicians, for their part, must be willing to climb the learning curve. Understanding how using EHRs may help protect them from liability, and how misuse or nonuse may increase liability risk, should motivate them to do so. Fourth, organizations can ensure that practice conditions are such that the use of the new technology can be maximized. Identification of appropriate practice conditions will require organizations to work closely with their care teams to identify existing barriers to the optimal use of EHRs, whether these involve the length of office visits, the placement of computer terminals, problems accessing external records, or other factors. Fifth, managing patients’ expectations about secure messaging and accessing of EHRs is pivotal. Finally, when physicians serve as experts in malpractice litigation, they can educate liability insurers and courts about the limitations of clinical-decision support systems and the appropriateness of departures from them in certain situations. Early in November, Disputing posted a beginner’s guide to negotiating an Electronic Health Record (EHR) software license agreement. We welcome your comments on medical malpractice as it relates to the implementation of EHRs. 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. Technorati Tags: Mediation

by Holly Hayes The American Hospital Association (AHA) and the American Medical Association (AMA) sent a letter to hospital CEOs and medical staff presidents in November to remind them that The Joint Commission’s (TJC) recent revisions to hospital accreditation Standard MS.01.01.01 (formerly MS.1.20) will take effect April 1, 2011. The new standard is “designed to contribute to patient safety and quality of care through the support of a well-functioning, positive relationship between a hospital’s Medical Staff and Governing Body.” Jane Reister Conard wrote a detailed post for Disputing earlier this year about the new standard and its Element of Performance (EP) 10 which states “there must be a conflict management system to address disputes that arise between the medical staff and the medical executive committee.” She wrote: The inclusion of conflict management in the medical staff standard reaffirms The Joint Commission’s commitment to conflict management first set forth in the leadership standard (LD) 01.03.01, and more particularly stated in its EP 7. The leadership standard became effective January 1, 2009. In December, 2008, the American Health Lawyers Association (AHLA) ADR Task Force published its Conflict Management Toolkit, to assist accredited facilities in addressing their need to develop conflict management systems in order to comply with The Joint Commission leadership standard. As part of its commitment to public service, the AHLA provides a complimentary download of the Toolkit available here. While many of the Toolkit’s foundational principles and its conflict management guidance apply equally well to the development of a medical staff conflict management system for disputes between the medical staff and the executive medical staff committee, the medical staff should be wary of using a “cookie cutter” approach by accepting the transfer in total of a facility conflict management system based on LD 01.03.01, EP 7 to a medical staff conflict management system based on MS 01.01.01, EP 10. Among other distinctions, a discerning medical staff member (or facility manager) would note that MS EP 10 addresses disputes among members of a unique entity, the medical staff, and its leadership. The medical staff may not be recognized as a distinct legal organization, may not have a separate business structure, and may not have sole control of its funds. Because of this looser structure, accommodations in processes in the broader facility conflict management system are necessary to account for individual physician’s concerns. As mentioned above, the AHLA toolkit is an excellent resource for use by hospitals and medical staffs as medical staff bylaws are updated to accommodate MS.01.01.01. 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. Technorati Tags: Mediation