It appears the United States Supreme Court may find itself considering yet another arbitration issue in the near future. 

Jacqueline M. Nolan-Haley, Professor of Law at Fordham University School of Law, has published a thoughtful journal article titled “Does ADR’s ‘Access to Justice’ Come at the Expense of Meaningful Consent?,” Ohio State Journal on Dispute Resolution, Vol. 33, No. 3, 2018; Fordham Law Legal Studies Research Paper No. 3230033.

The United States Court of Appeals for the Fifth Circuit has affirmed a district court’s order compelling arbitration despite one party’s avoidance attempts. 

The Northern District of Texas has ordered a lawsuit between a debtor and a nonsignatory debt collector to arbitration.

Last March The Joint Commission announced its long awaited, revised medical staff standard (MS) 01.01.01, which will replace MS 1.20. The new MS 01.01.01 becomes effective March 31, 2011, to allow facilities and medical staffs to prepare for implementation. The intent of the MS 01.01.01 is, inter alia, to establish a conflict management process in the event of a conflict between/among the medical staff, medical executive committee, and the governing body of a facility. The goal is to enhance patient safety and the quality of care by creating a positive working relationship between a facility and its medical staff. The language of the new standard is the result of much debate and compromise. Perhaps reflective of that development process, the standard states in Element of Performance (EP) 10 that there must be a conflict management system to address disputes that arise between the medical staff and the medical executive committee. 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 ER 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. The medical staff conflict management system will likely need to address heightened concerns of medical staff members regarding the credentialing process, economic impacts of changing practice patterns, electronic records connectivity confidentiality issues, reporting obligations, and liability exposure as affected by or arising from medical staff policies and actions. Such concerns of individual medical staff members must be anticipated and accommodated in setting up a medical staff conflict management system. Another important distinction in process is that the Toolkit recommends a baseline or initial assessment of the facility’s existing conflict management efforts. While such an undertaking is helpful for the facility so it can avoid duplication of efforts and build from an existing foundation, applying the same assessment tool to medical staff relations could create an unintended impression that the facility is cementing in the status quo and/or hijacking the development of a new conflict management system that should be unique to the medical staff and its leadership. An attempt to apply such existing internal facility functions would appear to the medical staff as the “other side” taking over. In the interest of maintaining every appearance of fairness and neutrality, the facility and the medical staff should agree to use outside or independent neutrals or conflict management specialists in conflict management the development and applications of a medical staff conflict management system consistent with the intent of MS 01.01.01. The Joint Commission’s new MS 01.01.01 has the potential to provide medical staffs and facilities a systemic approach to working through conflicts of interest that could well arise as the Patient Protection and Affordable Care Act (PPACA) is implemented. Facilities and medical staffs are already assessing the impact of PPACA and jockeying for favorable positions. The sooner complementary facility and medical staff conflict management systems are established, the more likely facilities and medical staffs can collaboratively position themselves to function effectively and successfully during healthcare reform implementation.

By Holly Hayes The American Health Lawyers Association (AHLA) Alternative Dispute Resolution (ADR) Service has posted a complimentary Conflict Management Toolkit to facilitate early management of disputes in health care organizations. The toolkit includes The Joint Commission (TJC) standards on conflict management and the sentinel event alert on disruptive physicians as well as sample guidelines, checklists and policy. (the toolkit is available here) For more on The Joint Commission standards related to conflict and disruptive behavior, see our posts here, here, and here. We welcome your comments on conflict resolution in health care. 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.