The Eighth District Court of Appeals in El Paso has affirmed a trial court’s order denying arbitration in a discrimination and retaliation lawsuit. 

Jean R. Sternlight, Michael and Sonja Professor of Law at the University of Nevada, Las Vegas William S. Boyd School of Law, has published “Mandatory Arbitration Stymies Progress Towards Justice in Employment Law: Where To, #MeToo?,” Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 54, 2019, Forthcoming. 

Hip-hop musician Jay-Z has formally withdrawn his request for a preliminary injunction and stay of arbitration after the American Arbitration Association (“AAA”) pledged to expand the organization’s roster of African-American arbitrators. 

The United States Court of Appeals for the Fifth Circuit has reversed a district court’s order compelling a proposed class action lawsuit to arbitration.

by Holly Hayes Modern Physician recently reported about a study by Harvard researchers that says the nation’s “medical liability system” accounted for approximately “$55.6 billion—or 2.4% of total healthcare spending in 2008—with almost $45.6 billion of that figure being spent on the practice of “defensive of medicine,” which includes ordering tests and procedures or avoiding high-risk patients in an effort to avoid being sued.” Purchase the full article here. The study indicates that states including Texas, California and more than a dozen others who have placed limits on noneconomic damages may “not be best for patients” and may not provide the solution to curbing defensive medicine. “Caps don’t seem to change behavior,” says Emily Carrier one of the lead authors of the study. She notes Texas limits noneconomic damages against physicians to $250,000. In an online survey of more than 3,000 physicians conducted last December by Jackson Healthcare, an Alpharetta, Ga.-based staffing and hospital management company, 92% of respondents said they practiced some form of defensive medicine. Pulling out the responses from Texas, Jackson reported that 80% of Lone Star State doctors said they still practice defensive medicine with 64% reporting no change in their behavior since caps went in effect in 2003, 31% reporting a decrease in defensive medicine practices and 5% reporting an increase. In Carrier’s study, physicians were not identified by individual states, but put in three groups consisting of the states with the highest and lowest risk of malpractice and those in the middle. When asked if they practice defensive medicine and are concerned or feel pressure by the threat of a malpractice suit, the study found that there was little difference in the level of concern among physicians practicing in the high-risk states and those in the lower-risk states. What frightens most physicians, Carrier says, is the arbitrary nature of malpractice lawsuits and how evidence suggests that the quality of care is not a good predictor of lawsuits. In fact, she says, “Many people actually injured by negligence don’t go on to sue.” “Physicians tend to view lawsuits as random events, unpredictable and uncontrollable, because they are not viewed as related to the quality of care provided,” the report concluded. “It is likely that physicians’ assessment of their risk is driven less by the true risk of malpractice claims or the cost of malpractice insurance, and more by the perceived arbitrary, unfair and adversarial aspects of the malpractice tort process—which most traditional state reforms do not address.” On Aug. 3, the American Medical Association released results of a survey of 5,825 physicians conducted in 2007 and 2008. Findings showed that 42.2% of the respondents said they’ve been sued at least once and more than 20% had been sued at least twice. Of respondents age 55 and older, 60.5% said they’ve been sued once and 39.2% had been sued at least twice. The federal government is backing pilot projects to test approaches that would ease the problem. HHS, through its Agency for Healthcare Research and Quality, awarded $25 million in grants for several patient safety and medical liability demonstration projects, with $2 million awarded to JBA/Rand to evaluate the findings from these projects and develop evidence to guide long-term solutions to current liability problems. “There will be a very strong focus on transparency, and disclosure to patients and families about harms,” AHRQ Director Carolyn Clancy says. “There will be a very strong focus on increasing the speed in which injured patients are compensated.” The interconnection between the twin problems of medical errors and medical liability can be hard to assess and lead to some misconceptions. “One myth might be that it’s an easy problem to fix,” she says. “This is a huge opportunity to make care safer, and that’s going to be a home run for everyone.” Similar demonstrations are authorized in the Patient Protection and Affordable Care Act, but AHRQ spokeswoman Karen Migdail says funds have yet to be appropriated to pay for them. The AMA, which has been bashed for supporting the healthcare reform law without getting any tort reform relief in return, is hoping to see tangible results. “The latest Harvard estimate of unnecessary costs generated by the nation’s flawed medical liability system affirms that real money can be saved with reforms,” states an e-mail from the AMA attributed to its president, Cecil Wilson of Florida. “The American Medical Association is committed to proven medical liability reforms that are already working in states such as California and Texas. As a result of AMA advocacy on the health reform law, for the first time the government has directed $25 million to further test promising proposals like health courts and safe harbors.” One of the AHRQ grant award winners is Eric Thomas, a professor of medicine at the University of Texas at Houston Medical School and director of the University of Texas at Houston-Memorial Hermann Center for Healthcare Quality and Safety. With his almost $1.8 million grant, Thomas will investigate UT’s disclosure and compensation program and identify and disseminate best practices for using disclosure to improve patient safety. A focus will be on involving patients or their families in the process. Thomas acknowledges that he and a colleague were sued during their residency by the family of a young woman who died from appendicitis complications several weeks after she came into the emergency room with abdominal pain and they diagnosed her with a urinary tract infection. He says that a jury found their original diagnosis to be correct and that her appendicitis condition developed independently from the problems that prompted the original emergency visit. The Harvard study published in Health Affairs concluded that the convergence of healthcare reform and tort reform “may have unexpected synergies in bending our cost curve down,” and Thomas notes how this may be happening in Texas. Thomas says “outstanding reimbursement reform from Washington or state Medicaid offices” may not solve malpractice problems and damage caps won’t stop doctors from practicing defensive medicine, but caps have saved money and the money […]

by Holly Hayes Our good friend, Don Philbin, sent us this link to a Harvard Business School article about “Turning Employees Into Problem Solvers” in healthcare. The article looks specifically at incident-reporting systems in hospitals and, rightly so, suggests that any system used to report and track incidents in healthcare should contribute to the implementation of actions to correct for those incidents resulting in higher quality care. The paper is authored by Julia Adler-Milstein, an HBS doctoral candidate in the Health Policy Management program; Sara J. Singer, assistant professor at the Harvard School of Public Health and Harvard Medical School; and HBS professor Michael W. Toffel. The team’s working paper, “Speaking Up Constructively: Managerial Practices that Elicit Solutions from Front-Line Employees,” considers data on nearly 7,500 incidents from a single hospital to determine whether two types of managerial actions increase the frequency with which frontline workers speak up by reporting incidents and do so constructively by including solutions in their incident reports. The authors looked at “patient-safety information campaigns.” Undertaking a campaign to encourage staff members to speak up about incidents increased the frequency of reporting by five percent. When staff were asked to share a solution to the problem the frequency of shared solutions tripled. In addition, there was a significant increase in reporting when unit managers actively engaged in problem solving. Staff were more likely to share solutions when their managers were more proactive in resolving the underlying problem. Another finding: the campaign worked great for a limited time period, after which staff appeared to “shut down” and the frequency in responses slowed. The authors ask, “At what point do people shut off?” The team’s database offers additional information to consider that was not examined in the working paper, Toffel says. Other questions to answer include: What types of responses to incidents are most effective? When should behavioral corrections be implemented? When should technological corrections be made? “I’m excited to look at this data longitudinally,” says Singer. “Ideally, one would hope that an incident gets reported and that a solution is implemented so that the incident doesn’t recur. We can look at whether this happens over time. Knowing this will make a significant contribution to improving patient safety, because a lot of hospitals rely on these reporting systems and promote their use, if only to fulfill accreditation requirements. “The real question remains, are they serving the intended purpose? It could be that very little happens with these reports in terms of the long-term learning that you would hope to see.” Says Adler-Milstein, “We could also determine if the same type of incident is occurring in a given unit over time, even when it is being reported. That would then make it possible to focus on how particular units resolve their problems.” Identifying pockets of excellence would enable more qualitative research to determine what exactly a unit is doing to achieve its success—and to identify how those practices could be codified and adopted elsewhere. “Health care started out with largely independent practitioners and a limited body of knowledge,” says Adler-Milstein. “Given the changes that have occurred recently, technological and otherwise, health care hasn’t caught up quickly enough with the new practice methods that accompany this very different, modern-day model. I hope we will get there eventually, but right now there is a lag.” Drilling down to discover when frontline employees speak up most constructively, and how to translate this into problem solving, should help bridge that gap. In terms of staff speaking up constructively and helping problem solve, we posted here about a Mass General study that indicated physicians are reluctant to report impaired or incompetent colleagues. We suggest that organizations that develop the capacity of staff and physicians to engage in healthy conflict in the workplace may move closer to achieving improved patient care. 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. Tags: Mediation