An interesting article focused on the arbitration of construction disputes was recently published by Dean B. Thomson and Jesse R. Orman, shareholders in the Construction Law Department of Fabyanske, Westra, Hart & Thomson, P.A., in Minneapolis. 

The Eighth District Court of Appeals in El Paso has once again conditionally granted mandamus relief in an arbitration dispute between Dish Network, LLC and a former employee. 

The Ninth District Court of Appeals at Beaumont has upheld an arbitrator’s nearly $460,000 legal malpractice award despite claims the arbitrator exceeded his authority by failing to follow Texas law. 

Frauke Nitschke, Team Leader and Legal Counsel on one of the Case Management Teams at the International Centre for Settlement of Investment Disputes has published “The ICSID Conciliation Rules in Practice,” Forthcoming, Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómes (Oxford University Press 2018). 

By Holly Hayes The Joint Commission (TJC) requires that all hospitals have a process in place to identify and assist staff physicians with health and behavior problems. A July study published in the Journal of the American Medical Association (JAMA) conducted by researchers from Massachusetts General Hospital found more than 31 percent of the 2,000 doctors who responded don’t turn in colleagues who are impaired or incompetent. The study surveyed nearly 3,000 doctors across multiple specialties. Read the full story, as reported by ABC news, here. The survey also found that 17 percent of doctors had encountered an impaired or incompetent colleague over the past three years, but only two-thirds of them actually turned those doctors in. Only 69 percent of doctors said they know how to go about reporting a compromised colleague. Lead study author Catherine DesRoches of the Mongan Institute for Health Policy at Massachusetts General Hospital told ABC News the fact that more than a third of physicians don’t agree that they have a responsibility to report doctor’s with problems is a “significant number” she finds troubling. “Self-regulation is the primary mechanism we use to make sure doctors that shouldn’t be practicing are not practicing,” said DesRoches. “That’s a key to protecting patients.” “This is a very important study, because it reminds us that we’re probably not doing what we should be doing,” said Dr. Virginia Hood, president-elect of the American College of Physicians and professor of medicine at The University of Vermont School of Medicine. “Our primary responsibility is always patient safety and what’s in the best interest of the patient, and when it appears that we’re not doing what we should be doing, it’s a matter of great concern,” she added. Doctors who are members of underrepresented minority groups, graduates of foreign medical schools and doctors in smaller practices were less likely to report an impaired or incompetent fellow doctor. There were three main reasons many doctors did not turn in their colleagues. “Twenty-three percent believed someone else was taking care of the problem, 15 percent didn’t think anything would happen and 12 percent feared retribution,” said DesRoches. The 36 percent of doctors who did not subscribe to reporting their colleagues included those who said they only “somewhat agreed” with their professional obligation to report compromised colleagues and also those who disagreed either somewhat or completely. “We just took ‘completely agrees’ and lumped everyone else into a ‘don’t completely agree’ group,” said DesRoches. The reason for that, she said, is because only complete agreement is considered to be consistent with ethical reporting standards set by professional medical societies. She also acknowledged that if these doctors were lumped into the “agree” grouping, many more of them would have been in agreement with their ethical obligation to report an incompetent or impaired colleague. In an accompanying editorial, Dr. Matthew Wynia of the American Medical Association’s Institute for Ethics argued that the authors see the glass as half-empty. “A solid majority of physicians (64 percent) ‘completely’ agreed that they are obliged to report all significantly impaired or incompetent colleagues and, presumably, some number of those who did not agree completely would have agreed ‘somewhat,’” he wrote. DesRoches also notes some of the survey’s limitations, including the effect nonresponders could have on the results. “We did weight our results, but these adjustments are not perfect,” she said. She also acknowledged that evaluating incompetence is very subjective. At least one other doctor agreed, saying that incompetence is not easy to judge. “It’s rare that you see a doctor who is completely incompetent,” said Dr. Rick May, vice president for clinical consulting at HealthGrades, an independent group that rates health care practitioners and institutions. “What’s more common is that you see a physician who’s incompetent when it comes to using a certain medication or performing a certain procedure.” To better understand the effects of disruptive behavior in healthcare, The Journal of Nursing Care Quality published the results of a qualitative study titled “Hospital RNs’ Experiences with Disruptive Behavior”. “Disruptive behavior affects the RN, patient, and practice setting. The nurses described impacts such as being distracted from patient care, taking a physical or emotional toll on them personally, and creating conflicts for them between meeting patient care needs and meeting the operational needs of the hospital. They also expressed concerns that disruptive behavior can decrease the quality of care, create risks to patient safety, delay the delivery of care to patients, and disrupt working relationships among team members.” Nurses also discussed the impact of disruptive behavior on retention. Forty-eight percent of participants said they knew a nurse who transferred to another unit or department because of disruptive behavior and thirty-four percent said they knew nurses who had terminated their employment because of disruptive behavior. For more on this study, read here. A survey published in November 2009 conducted by the American College of Physician Executives published almost one year after The Joint Commission began requiring health care facilities to implement zero-tolerance policies for disruptive behaviors, tells us there is still work to be done in this area. According to anonymous responses to a national survey of 13,000 physician and nurse executives, ninety-seven percent experienced unprofessional outbursts and overreactions, with the majority saying these happened several times a year and sometimes weekly. Physician and nurse executives respondents suggested solutions to decreasing disruptive behavior including: setting clear expectations, implementing consistent enforcement and focusing on teamwork. For more on this survey, read here. Mediation is one non-confrontational interaction strategy that can be implemented to resolve conflict, improve the working relationships of the parties involved and enhance teamwork and patient safety. 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.

By Holly Hayes In May, we wrote about Dr. Donde Plowman’s presentation in Austin where 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 often results in innovation. 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 is Professor in Business and Department Head at the University of Tennessee. On this same topic, mediate.com posted a video of David A. Hoffman talking about “conflict being good in that it brings about change. While conflict can be scary, it can also have positive outcomes.” See his video here. David is a mediator, arbitrator, and Collaborative Law attorney at Boston Law Collaborative, LLC. A Nurses First article titled The Cost of Avoiding Conflict by Diane E. Scott, RN, MSN gives an example of how one nurse avoided conflict in the workplace: As a night shift charge nurse, I would dread working with a particular co-worker because of her negative attitude. She frequently complained about her patient assignment and rarely offered to help other nurses. I finally got to my breaking point and requested a transfer to another shift rather than work with her again. Rachel, RN. The article reviews a study called Silence Kills that demonstrates how avoiding conflict can have negative results. The study was conducted by Vital-Smarts and The American Association of Critical-Care Nurses (Maxfield, Grenny, McMillan, Patterson, & Switzler, 2005). Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. We welcome your comments on the positive results of conflict. 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.