Healthcare Neutral ADR Blog

Changes In Scope Of Healthcare Practice = Conflict, Too

Richard J. Webb — Thu, 04 Feb 2010 11:20:51 -0500

Earlier this week I wrote about the inevitability of conflict arising out of the leading ideas behind healthcare reform. Restructuring healthcare payment systems to reward efficiency and quality rather than volume will only be effective if they result in a decrease in overall spending. With that "smaller pie" will come disputes over how to slice the pie. But efforts to contain healthcare costs will not be limited to elegant reform measures based on lofty principles. Especially when government payers are involved, healthcare cost containment may take a more direct approach.

Witness the "turf war" between anesthesiologists and Certified Registered Nurse Anesthetists ("CRNAs") going on in California. As reported by James A. White in The Wall Street Journal Health Blog, Governor Arnold Schwarzenegger last year exercised an option under the Medicare program to permit CRNAs in California to administer anesthesia without a supervising anesthesiologist. The California Medical Association and the California Society of Anesthesiologists filed a lawsuit to block Schwarzenneger's decision. Prior to California's decision, 14 other states had opted out of the physician supervision requirement.

Healthcare cost containment by government payers can occur through licensing and enforcement proceedings that directly or indirectly change the scope of practice permitted in a given healthcare sector. A health care adviser to California's Governor told Anesthesiology News that "the purpose of the opt-out decision was to reduce pressures on and increase access to services at small and rural hospitals." Hmm. The WSJ Health Blog notes that California has the largest number of anesthesiologists in the U. S. at 5,400. Leaving aside the debate on patient safety, it is not hard to understand that paying unsupervised CRNAs costs less than paying for physician supervision.

Once states take action to change a permissible scope of practice, the action shifts to how that change will be applied by hospitals, physicians and third party payers. The California rule change did not mandate the use of unsupervised CRNAs. But when payers demand lower prices and hospitals compete for patients, possible cost reductions have a way of becoming necessary cost reductions. That's when the fun begins.

[Image: Turf War Graffiti at Glanmoelyn, Llanrug, United Kingdom, by Eric Jones, August 12, 2006]

Healthcare Reform and Inevitable Conflict: Smaller Pie Means Smaller Slices

Richard J. Webb — Mon, 01 Feb 2010 09:28:00 -0500

With all the media coverage of healthcare reform and its political ramifications, its easy to get caught up in the debate. Notwithstanding the recent setbacks, there will be some kind of reform in the not too distant future, if only because the sources of healthcare payment cannot keep up with the costs of providing care. Most healthcare economists agree that real reform will only come when the financial incentives of the current system are altered to reward quality and efficiency rather than volume.

A concept frequently put forth to address this objective is the "accountable care organization" or "ACO" (any reputable idea in healthcare must be reducible to a three letter acronym). Essentially, ACOs are associations of healthcare providers (typically, doctors and hospitals) that share responsibility for the coordinated care provided to a pool of common patients. ACOs can share clinical information and operate with some degree of financial integration. The providers in the ACO are then jointly "accountable" to the third party payers who fund the care provided to their beneficiaries by the ACO. (See the recent post in the Healthcare Economist explaining ACOs and some of the key characteristics of various ACO models.)

Another concept aimed at the same objective is "value based purchasing" or "VBP." Under VBP, the current system of Medicare payments to physicians (based on a per task menu of fees) would be converted to one based on efficiency and quality. In order to assess a physician's efficiency and quality, the services provided to any patient would have to be grouped with all services within the same "episode of care." As noted in another post at the Healthcare Economist, this process of grouping carries with it a number of unanswered questions.

Sooner or later, the use of ACOs and VBP in some form will become a reality. There is no other politically viable approach on the horizon to reducing healthcare costs. But that will be only the beginning of a wave of conflict within the world of healthcare providers and third party payers. ACOs, VBP and any other three letter acronym to come will only reduce healthcare costs by yielding a result by which the total dollars paid to doctors and hospitals for providing care to a group of patients is reduced. Otherwise, why bother? When the pie gets smaller, everyone's piece will get smaller, too. Those who provide the highest quality, most efficient services may get a larger piece, but that will only make everyone else's piece even smaller.

Most doctors and hospitals do not believe they are overpaid under the current regime. Many have experienced decreased net income over recent years. All will enter the new arena of ACOs and VBP firmly holding the "bottom line" position that they must at least maintain their financial status quo. The convergence of so many irreconcilable bottom lines will create conflicts that play out in a variety of scenarios. Who will lead the ACO? Who will be allowed in or kept out? Who will decide the internal compensation model, and what will it be? What effect will the ACO have on existing hospital-physician relationships? On existing medical practice agreements? How far will ACOs go to create, preserve and assert their control over patients in dealing with third party payers? How much of the benefit of their "efficiency" will providers share with third party payers?

[Image: Thanksgiving pie aboard U.S. naval ship in the Persian Gulf, by Photographers' Mate Airman Rome J. Toledo, November 25, 2004]

Mediation in Healthcare Interview at Disputing Blog

Richard J. Webb — Mon, 25 Jan 2010 09:29:00 -0500

Holly Hayes Bovio and Victoria VanBuren over at Disputing were very kind to post Holly's Q&A with me on Mediation in Healthcare. Disputing has become one of my favorite ADR blog reads, and Holly and I share both a Duke connection and a focus on healthcare. I'm looking forward to collaborating with them again on healthcare ADR topics of interest.

[Image: Thank You for using the Garden State Parkway, June 5, 2006, via Wikimedia Commons]

Guido v. Duane Morris: Potential Setback For Mediation?

Richard J. Webb — Fri, 22 Jan 2010 09:33:31 -0500

On Wednesday, January 20, 2010, the New Jersey Supreme Court heard oral argument in Guido v. Duane Morris, a case focused on whether a client could sue his former lawyers for malpractice based on a settlement the client had accepted years earlier. It was on appeal from an Appellate Division decision in favor of the client that was well covered by Mary Pat Gallagher on LAW.COM in July 2009. The case will require the Supreme Court to reconcile two of its previous decisions, Ziegelheim v. Apollo, 128 N.J. 250 (1992) and Pruder v. Buechel, 183 N.J. 428 (2005). The legal community is closely watching the case, and both the New Jersey State Bar Association and the Trial Attorneys of New Jersey participated as amicus curiae.

As reported by Michael Booth in the New Jersey Law Journal online edition, the oral argument found counsel and the Court struggling to parse the holdings in Ziegelheim and Pruder, with a heavy overlay of public policy considerations involving the attorney-client relationship. Although the outcome will likely be an important milestone in the law of attorney malpractice, its potential effect on the use of mediation should not be overlooked.

Guido's underlying cause of action was settled after mediation. The settlement was placed on the record in the trial court, and included questioning of the parties to confirm their understanding and agreement to be bound by the settlement. Nonetheless, the Appellate Division found that the plaintiff's later alleged realization that his lawyers had not explained the long-term value and marketability implications of the settlement was a sufficient basis for a legal malpractice claim. There was no question raised about the propriety of the mediation or the enforceability of the settlement itself (other than an argument by Duane Morris that Guido should have to ask the trial court to reform the settlement before suing his former counsel). But a Supreme Court decision in favor of the client in Guido should cause lawyers to think differently about how they settle cases in mediation.

Parties and their counsel often work long and hard in mediation sessions to hammer out a resolution to complex issues. Along the way, each party spends bargaining chips and gains concessions, the implications of which are, of necessity, evaluated on the fly. At the end of a successful day, the parties memorialize their settlement, sometimes subject to a formal agreement and court approval, sometimes not. Along the way, counsel will help their clients understand the legal consequences of their negotiation moves, and usually will take some time to review the final proposed settlement before sealing the deal. But how much of such good counsel is enough?

If parties to a settlement can look back with 20-20 hindsight, years later, and successfully assert that legal malpractice occurred based on their counsel's failure to fully explain issues such as those alleged in Guido, the parties' ability to settle many cases in mediation will be significantly hampered. This is not because parties will need to be better informed about their settlement decisions than they are now, but because counsel will need to be prepared to prove that their clients were well informed. Today, counsel can reasonably rely upon a brief conversation, or even a nod, to confirm the client's understanding on a given point. Often, that conversation or nod will follow hours of previous conversations and nods that unfolded during the course of the mediation. Will the awaited Guido decision effectively require all of that to be written down, and fully draped with the litany of disclaimers that characterize formal opinion writing? If so, each mediation session should be scheduled to include an extra day, post-settlement, for the "c.y.a." exercise.

One way of dealing with this problem is to have counsel provide a written cover letter to the client in connection with a formal settlement agreement prepared following the mediation. But this option raises the possibility that the client will balk at the formal settlement agreement and allege that the lawyer's explanatory letter came too late. If the essence of the settlement reached at the conclusion of the mediation is already enforceable, the lawyer is still in the soup.

[Image: Home-made Hungarian goulash soup, by Hu Totya, October 12, 2008]

The Bar will anxiously await the Supreme Court's decision. In the meantime, if you have thoughts about how this issue affects your participation in mediation, please share your comments.

Mediator's Proposal Roundtable

Richard J. Webb — Thu, 21 Jan 2010 12:30:00 -0500

[Image: King Arthur and the Knights of the Round Table, via Wikimedia Commons.]

I was delighted to see my comments on the use of "the mediator's proposal" included in a roundtable on that subject hosted by Steve Mehta over at Mediation Matters. Others weighing in on the topic were Lee Jay Berman, Don Philbin and Jeff Thompson. It is interesting to see how much agreement occurred among four mediators who did not discuss their answers to Steve's questions in advance.

If you are interested in mediation and do not already read Mediation Matters, you should. Steve Mehta regularly turns out well written posts on interesting mediation subjects from a very practical perspective.

Cardozo To Host Conflict At Work Symposium

Richard J. Webb — Fri, 30 Oct 2009 10:54:16 -0500

[Image: Anselm Feuerbach's painting of a scene from Plato's Symposium, 1869.]

The Cardozo School of Law Journal of Conflict Resolution will hold its 11th annual symposium in New York City on Thursday, November 5, 2009, entitled "Conflict Resolution at Work, ADR in the Private and Public Sectors." The full day program will include panels on the use of ADR in real estate, federal government and healthcare. I will be part of the panel on healthcare along with moderator Ellen Waldman, Jerry P. Roscoe, Chris Stern Hyman and Joan Ilivicky, The symposium is free, and includes breakfast, a reception and CLE credits! If you attend, please stop by and say hello.

Unintended Harm Really Does Hurt Less

Richard J. Webb — Thu, 12 Feb 2009 11:53:00 -0500

Dan Ariely's Predictably Irrational blog pointed me to a recent article in Economist.com called "Malice Aforethought." The article reviews a study in Psychological Science by Drs. Kurt Gray and Daniel Wegner of Harvard University that essentially asked the question:

"If someone accidentally steps on your toe, it hurts. But does it hurt more if you think he did it deliberately?"

According to The Economist, their answer is that it probably does.

The article describes the tests administered by Drs. Gray and Wegner to 43 students, who assessed levels of discomfort associated with tasks that were in some cases stated to be intentionally inflicted by their study partner, and in other cases the result of random selection and contrary to the will of their study partner. Discomfort was rated by the participants on a scale of one to seven.

"...the students rated the strength of shocks they thought had been intentionally administered at 3.62 on average; those they thought unintentional averaged 3.00. The researchers also found the apparently unintentional shocks hurt progressively less as the experiment went on, whereas those perceived as deliberate continued to hurt as much."

Whether this research can be extended to non-physical harm remains to be seen. But I am willing to bet that it can. The lesson for parties in mediation is clear: When you really didn't intend to inflict the "harm" being experienced by your adversary, let him know it. This is related to, but different from the often touted value of an "apology." Apologies carry implications of fault, guilt and regret that may not be appropriate or possible at every stage in a mediation. Convincing the other side that you did not intend a result to occur is more limited and easier to do.

The greatest benefit of communicating an absence of intent is its capacity to build a bridge of understanding that is often required for a successful mediation. Without admitting fault or responsibility, one party can often say, "I understand how this makes you feel, and I just want you to know that it was never my intent for you to experience that result." This can be followed up by an explanation of what the offending party was trying to do or say, thus giving credibility to the denial of intent. Particularly in cases based upon or motivated by a perceived injustice or betrayal, this approach moves the mediation to a different level, where realistic and constructive solutions can be reached.

[Image: Car vs. motorcycle accident in Pisek, Czech Republic, February 1, 2008, by Chmee2]

Will Healthcare Reform Spread The Wealth To Primary Care?

Richard J. Webb — Tue, 03 Feb 2009 20:03:00 -0500

Yesterday's Wall Street Journal Health Blog had a post by Jacob Goldstein on the potential struggle brewing between primary care physicians and specialist physicians over the need to free up more money for primary care - a widely accepted element of necessary healthcare reform. Earlier that day, the American College of Physicians called for more federal funding for primary care, not through "budget neutral" adjustments in the Medicare physician fee schedule (i.e., by reducing payments to specialists), but simply by paying more upfront for primary care. The WSJ Health Blog interpreted the primary care position paper this way:

"Congress could try to pay primary care docs more by cutting Medicare payments to some of the rich specialists. But the rich specialists would fight that tooth and nail, and nothing would ever get done."

Reading this, I couldn't help but recall a time in my former life when I heard a newly proposed law firm partnership compensation system described by one of its proponents this way: "It will work well because some partners will make more, and everyone else will make about the same." Regrettably, law firm profits are a zero sum game. There may be enough "stimulus" mania (i.e. printing of money) in Washington these days to save the primary care docs and the specialists from a zero sum fate, but probably not for very long.

More than two months ago, this primary v. specialist conflict was predicted and thoroughly dissected by Maggie Mahar and Niko Karvounis in The Health Care Blog, where they dubbed it the "Spread the Wealth Controversy." In the end, they concluded that money alone would not be the answer to the problem:

"Ultimately, we will probably need to grapple with primary care as a cultural issue within the medical community....in medical schools, students are sometimes looked down upon for choosing to specialize in cognitive care. Further, research has shown that the medical school curriculum actually drains students of empathy, which may contribute to de-valuing communicative, interpersonal care....The bottom line is that we need to take a multi-faceted approach to the primary care crisis."

For a more provacative treatment of the need for systemic reform of primary care, see "Mythology and Healthcare Reform" by Monte Uyemura, M.D., also in The Health Care Blog. Better yet, just subscribe to The Health Care Blog - its a great read on all matters concerning the health care system.

I have friends and colleagues on both sides of this primary v. specialist conflict. Most of them don't see it as their conflict at all, and find it unpleasant to talk about. Unfortunately, it won't likely go away.

[Image: "Artwork" with 20 Dollar bills]

Welcome Betsy Ryan's Healthcare Matters Blog!

Richard J. Webb — Wed, 28 Jan 2009 11:09:00 -0500

I recently learned that Betsy Ryan, the President and CEO of the New Jersey Hospital Association, has started a blog called "Healthcare Matters." It appears as part of the New Jersey Hospital Association's public website.

"Healthcare Matters eamines the many issues confronting New Jersey's hospitals and their patients. Readers are encouraged to join the discussion, because healthcare matters- to all of us."

For those not familiar with Betsy Ryan, she was recently appointed to the NJHA's top management post after years of service as the organization's Chief Operating Officer and General Counsel. She has extensive experience in the legislative, regulatory, financial and operational issues facing New Jersey's hospitals. As a result, her blog is well positioned to address a subject not currently covered directly in the blogosphere.

So far, Healthcare Matters has captured some of Betsy's personal perspectives on current events affecting New Jersey's hospitals. She has already attracted some lively discussion. Subscription by RSS is easily done, and I encourage all to join in and expand this dialogue.

[Image: welcome kitty, by Portraitlady4306, August 27, 2007]

What It Means To Be Neutral

Richard J. Webb — Thu, 22 Jan 2009 10:57:00 -0500

[An astronaut training in the Neutral Buoyancy Laboratory at the NASA Johnson Space Center]

I recently read an excellent commentary in the New Jersey Law Journal (195 N.J.L.J. 95, January 12, 2009, page 19) by retired New Jersey Superior Court Judge Harvey Weissbard entitled "The Myth of Judicial Neutrality." Available online by subscription only, it's worth digging out your old hard copy if you missed this when it first appeared. In Judge Weissbard's view:

"The notion that a judge is neutral is one of many legal fictions. The concept presumes that the judge is a tabula rasa, a clean slate." Instead, Judge Weissbard suggests, "every judge is a product of life experiences, which result in an indelible imprint we may call the judge's personal philosophy...We all know that a lifetime of practice in a particular area cannot be shrugged off when the robe is put on. And personal world views, derived from family experience or religious indoctrination, are no less likely to influence the judge."

Judge Weissbard's central point is that judicial neutrality exists only as the result of a conscious struggle by judges to recognize and subordinate their personal values and beliefs to the objectivity that all litigants are promised.

So, too, is the neutrality of the non-judicial "neutral" in arbitration, mediation and other forms of alternative dispute resolution. There is no denying the "personal philosophy" one acquires through a lifetime of professional practice, business and personal relationships. In the course of a friendly conversation or barroom debate, that "personal philosophy" would likely show itself rather clearly. But like a judge, the ADR neutral must face what Judge Weissbad calls "the proverbial elephant in the room" and handle each case fairly and objectively.

Unlike a sitting judge, the ADR professional's "neutrality" as perceived by the parties is subject to a higher test in the form of the opinion of the marketplace. Although judicial forum shopping can and does occur to a limited extent, ADR neutrals are subject to immediate and lasting negative consequences if any party believes the neutral is "biased." Parties and their counsel will simply vote with their feet.

This is the reason why "subject matter expertise" can coexist with "neutrality" on the ADR professional's resume. Very few neutrals have had a legal practice that was evenly divided among the representation of parties on all sides of the disputes in which they now claim to have subject matter expertise. In selecting an ADR professional, parties can attempt to figure out whether a candidate's legal experience potentially predisposes him or her to that party's point of view (i.e., a neutral with a shortsighted business plan), or they can select someone who has a reputation for being fair, open-minded and neutral.

Balance Billing For Healthcare Services - Who Will Be Left Holding The Bag?

Richard J. Webb — Mon, 19 Jan 2009 11:07:00 -0500

One of the hottest areas for disputes in the healthcare industry is the practice of "balance billing" of patients by non-participating providers for services reimbursed by the patient's insurer at less than the provider's billed charges. The provider's demand to be paid the difference, or "balance," then becomes a point of contention in a three way battle between the provider, the patient and the insurer. The provider just wants to be paid its standard charge, the patient wants the insurer to cover whatever the patient owes, and the insurer wants to limit its outlay to the payment of a "reasonable" charge.

Recently, this issue has been played out dramatically in California, where regulators have mandated (and the California Supreme Court has agreed) that non-participating emergency department physicians accept an insurer's payment on behalf of its insureds as "payment in full," with the physicians having no right to collect the balance directly from the patient. The physicians may pursue the insurers, but only by disproving the insurer's determination that the physicians had received the reasonable and customary fee for such services.

Meanwhile, in New York, Attorney General Andrew M. Cuomo has wrestled one of the nation's largest insurers, United Health Group, into an agreement to overhaul the manner in which it makes its determinations of "reasonable and cutomary" fees, thereby trying to reduce the number of "balance bills" that end up as payment disputes between patients and providers.

Last week, New Jersey got into the act with the publication of proposed regulations by its Department of Banking and Insurance to amend the rules governing the Small Employer Health Benefits Program. The proposed rules would change the definition of the payment required by insurers to non-participating (or "non-network") providers from a "reasonable and cutomary" charge to the "allowed charge," with the "allowed charge" to be based on the charge profile for New Jersey developed by Ingenix. Moreover, the rule change would extend to hospitals as well as physicians. Interestingly, the Ingenix model is the same one New York Attorney General Cuomo just compelled United Health Group to stop using in New York, calling that system "unreliable, inadequate and wrong." Comments to the proposed New Jersey rule changes are due today.

When health insurers cover services provided by non-participating (or non-network) providers, but do not pay the providers' customary charges, something has to give. In the current political and economic environment, it is highly unlikely that the states will permit the insured patients to be subject to lawsuits by providers to collect a balance bill. On the other hand, although the current New Jersey proposal might appear to do so, I don't believe we are ready for a system where a health insurer will be given the authority to effectively determine what all of the healthcare providers in a state can and should be paid by insurers with whom they have no contracts.

By one means or another, the states will turn these three way disputes into two way disputes between the insurers and the providers. The rules of this game are just now beginning to take shape, as seen in the California and New York initiatives discussed above. Once those rules are clarified, alternative dispute resolution techniques will come to the fore. Individual lawsuits to collect a balance bill will disappear, and class actions to challenge the rules of the game will have been played out. The rest will be about whether providers can get insurers to understand why their charges should be paid. Providers and insurers will find better, faster and cheaper answers to those questions outside the courtroom.

[Rattlesnake sacking, from That Other Paper from Austin, Texas, March 31, 2007]

The Mediator's Proposal: Too Much Of A Good Thing?

Richard J. Webb — Mon, 15 Dec 2008 20:01:00 -0500

Attorney John DeGroote, in his Settlement Perspectives blog, wrote last week about "The Mediator's Proposal: A Great Tool For Yesterday's Disputes." As John defines it, a "mediator's proposal" is:

"...a set of settlement terms advanced by a mediator in an effort to settle a dispute when the parties have reached an impasse. The mediator's proposal is made on a double-blind basis to all parties in separate communications; the parties are asked to accept or reject the terms as proposed, with no modification or counteroffer, within a specific time frame."

This impasse breaking tool, in John's view, is far too accessible, and as a result, may be creating more deadlocks than it solves. Calling to mind the old Mad Magazine cartoon "Spy v. Spy," in which Spy White and Spy Black engaged in acts of espionage to elicit responses that could be met with predictable countermeasures, John suggests that sophisticated counsel in many mediations are now purposefully working towards an impasse rather than towards a settlement, knowing that a mediator's proposal will be forthcoming. In his words,

"Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the 'neutral,' whose power to craft the mediation proposal will make her the real decisionmaker."

John's observation and "Spy v. Spy" analogy, like everything on his blog, are insightful and well crafted. So am I worried that by making a mediator's proposal in any of my future mediations I may be working against the fundamental principles of mediator neutrality and party self-determination? Or that I will be creating more deadlocks than I am breaking? No.

First, the notion that the potential for a mediator's proposal will cause the parties to "play" the mediator rather than mediate in good faith assumes that most counsel are not already "playing" the mediator anyway. My observation is that most good counsel are always doing a little bit of both. As a mediator, I expect that, and don't hold it against the client.

Second, at least under my idea of what a "mediator's proposal" should represent, each party's effort and movement prior to the mediator's proposal are relevant to the formulation of the proposal. I would not offer a mediator's proposal unless the parties have made significant progress towards settlement, there is a discrete and manageable distance remaining between them, and they both seek my input. In that case, my proposal is intended to suggest a way for them to finish what they have started but cannot conclude despite their best efforts, and further mediation is not possible. A party who "hangs back" in the mediation process cannot safely assume that my proposal will simply "split the baby."

Finally, I think most lawyers will have more confidence in their ability to negotiate effectively through good faith mediation than they will have in their ability to double think me (a la "Spy v. Spy") into an advantageous mediator's proposal.

In the truest sense, a "mediator's proposal" is not mediation at all, and if it becomes more than an occasionally used closing technique, the process might better be called a neutral case evaluation. But as long as parties are showing up to mediate, and cases are getting settled, I can deal with the possibility that somebody is trying to outsmart me. Let's not forget, Spy White and Spy Black each lost an equal number of their encounters.

[Image: A postcard with the public domain "me worry?" face that later inspired Mad magazine's Alfred E. Neuman]

AHLA Offers Practical Toolkit For Managing Healthcare Conflicts

Richard J. Webb — Wed, 26 Nov 2008 08:40:00 -0500

Before you head off for the long Thanksgiving weekend, consider signing up for a teleconference to be held next Tuesday that you might otherwise miss in the post holiday crush. The American Health Lawyers Association ("AHLA"), through its ADR Task Force, is offering "A Practical Toolkit for Managing Healthcare Conflict" from 3:00 to 4:00 p.m. Eastern Time on December 2, 2008. You can read the full description of the program and sign up on the AHLA's website. It is open to AHLA members and non-members.

Presumably, the teleconference will be based on the "Practical Toolkit for Managing Healthcare Conflict" just published by the AHLA, which is available as a PDF on the AHLA website. This document is a good summary of the need for conflict management in the healthcare (particularly hospital) setting, and provides a framework for hospital management to approach conflict management comprehensively. It also addresses the specific requirements for internal hospital conflict resolution processes mandated by the Joint Commission.

No doubt the current economic crisis affecting hospitals in New Jersey and throughout the country will only make conflict more prevalent and important to manage. It will be interesting to see whether some of the suggestions made in the AHLA's toolkit, which will carry a new and significant price tag, will gain traction. I believe what they say about "an ounce of prevention" applies here, but those with the checkbooks may need more convincing.

Joining in to hear this program would be a step in the right direction.

[Image: A toolbox, by Per Erik Standberg, May 13, 2006]

Caught In The Legal Recession?

Richard J. Webb — Tue, 18 Nov 2008 12:55:00 -0500

Legal periodicals these days are filled with stories about the effects of the current economic downturn on the legal profession. Some offer dire predictions, while others see a cloud with a silver lining. The American Bar Association wants to feel the pulse of its members on this issue and share the result of its efforts. You can go to the poll being conducted for the ABA by Survey Monkey to participate. Paste this into your browser bar to participate:

http://www.surveymonkey.com/s.aspx?sm=9Dhw2g7bX_2bxfq4mW8eB1Cg_3d_3d

Tear yourself away from watching your 401(k) and give this poll about two minutes of your time. I did, and it made me feel better.

[Image: Fishing net, by Goddard Spaceflight Center Sport Fishing Club, May 15, 2003]

Honoring Those Who Serve On Veterans' Day

Richard J. Webb — Tue, 11 Nov 2008 20:08:01 -0500

Fellow mediator and blogger Nancy Hudgins points out a great site to explore on this day in honor of those who serve in our nation's military. "Any Soldier Dot Com" will give you the address of a soldier to whom you can send a "care package" of your creation. Nancy details her own experience in sending such packages, and reminds us that it really doesn't take much to make a big difference in the lives of those who serve.

I saw Nancy's post just as I read of the efforts of two New Jersey dentists (and friends of mine), Ed Johnson and his daughter, Katelin Johnson. Ed and Katelin conduct an annual drive to buy up the Halloween candy collected by local kids and send it to our troops. The price paid is $1 per pound, and this year their package is expected to exceed 400 pounds. It will be sent to a local soldier serving in Afghanistan for further distribution there. The Johnsons pay for the candy and the costs of packaging and shipping.

Whatever you may feel about our nation's involvement in any given conflict, efforts like these bring to mind that "supporting the troops" can take many forms. Spread the word.

[Image: Joseph Ambrose, an 86 year-old World War I veteran, attends the dedication day parade for the Vietnam Veterans Memorial in 1982. He is holding the flag that covered the casket of his son, who was killed in the Korean War]

Living With Hall Street v. Mattell Under The New Jersey Arbitration Act

Richard J. Webb — Mon, 03 Nov 2008 08:00:00 -0500

I wrote here previously about the options faced by healthcare lawyers considering the use of an arbitration agreement following the U.S. Supreme Court's decision in Hall Street Associates, L.L.C. v. Mattell, Inc. As I saw it then, the decision in Hall Street requires counsel to decide what it is about the arbitration process that would cause them to choose arbitration in the first place. It seemed to me that those who wanted the best of all worlds (i.e., the scope of authority, speed and finality of traditional arbitration and the legal safety net of enhanced judicial review), probably could not have it all. I just read an article that addresses this point in far greater detail in the context of cases arising under the New Jersey Arbitration Act.

In "Law And More: Enforced Arbitration With Enhanced Judicial Review" (New Jersey Lawyer News online, November 1, 2008), attorney Christopher Walsh of the Gibbons firm presents a thoughtful analysis of the issues faced by New Jersey counsel in enforcing an arbitration provision calling for expanded judicial review, even though the New Jersey Arbitration Act allows the parties to select this option. He focuses on the ambiguity of the Hall Street decision itself, the potential preemption of the New Jersey Arbitration Act, the effects of a removal of a state court vacatur proceeding to federal court, and the use of a choice of law provision to insulate the a desired application of the New Jersey Arbitration Act.

Although I remain struck by the incongruity of using arbitration subject to "enhanced judicial review," this is clearly a path some parties and their counsel will want to follow. In New Jersey, Christopher Walsh's article is a good place to begin.

[Image: Lesser Ury: Leser mit Lupe, c. 1895]

Program On Healthcare - Consumer ADR In Philadelphia

Richard J. Webb — Tue, 14 Oct 2008 08:20:00 -0500

I heard from Jean Hemphill, Chair of the Health Care Group at Ballard Spahr, that she will be among the speakers at a free seminar on Thursday, October 16, 2008, entitled: "Arbitration of Health Care Claims Seminar: Reducing Malpractice Exposure and Maximizing Your Collections." The program will be held from 2:00 to 4:30 p.m. at the Philadelphia Marriott West in West Conshohocken, Pennsylvania.

Other speakers scheduled to appear include Ballard Spahr partners Alan S. Kaplinsky and Jeremy T. Rosenblum, former Duke University General Counsel David Adcock, Keith Maurer and Aaron Rose of National Arbitration Forum spin-off Forthright, and Deborah Lorber, Director of Risk Management, Drexel University College of Medicine. The agenda promises to "explain how arbitration of malpractice and billing claims can radically reduce malpractice exposure, increase success in collecting on delinquent accounts, and improve patient relations."

This seminar appears poised to argue the other side of the debate raised by current legislative efforts to ban pre-dispute arbitration agreements between healthcare providers and patients, particularly in the nursing home context. That debate should go on, but it will be important for both sides to consider alternatives other than an "all or nothing" result. Among the issues in play:

- Should agreements to arbitrate consumer/patient bills for services rendered be given the same status as agreements to arbitrate claims of medical malpractice? Should different rules apply?

- Can steps be taken to assure that patients and their families truly understand the meaning of arbitration agreements upon the initiation of a healthcare service, with enforcement of the arbitration agreement being dependent upon adherence to some "industry standard" measures?

- Can healthcare providers and ADR professionals do more to assure the neutrality of mandated ADR processes, and in particular, nullify the perceived advantage of "repeat users" of ADR services?

If you will be anywhere near Philadelphia this Thursday, consider preregistering via the Ballard Spahr website, and see if the presenters at this program address these questions. You can share your impressions by leaving a comment on this post below.

[Image: Geno's Steaks at dusk, Philadelphia, PA, by Bobak Ha'Eri, April 19, 2007]

New Jersey Hospital Seizes An Opportunity To Maintain Its Mission

Richard J. Webb — Mon, 13 Oct 2008 08:00:00 -0500

I've written here previously about the need for all constituents at a financially challenged hospital to collaborate towards a mutually positive solution, and to seize the moment of opportunity that arises once it is clear that the status quo cannot be sustained. Waiting for a financially strapped state government like New Jersey's for help may result in others seizing control, but will not likely fix the underlying problems.

It was great to read last week that Raritan Bay Medical Center, a two hospital system with an older and larger facility in Perth Amboy and a newer, smaller complex in suburban Old Bridge, was planning to meet with potential buyers of the Old Bridge facility to secure a cash infusion for the struggling Perth Amboy hospital. I was born in Perth Amboy Hospital in 1953. No, this is not me below, but the scene probably looked much like this back then.

Writing in the Star Ledger online edition, Tom Haydon reports that employees at the two hospitals were informed of the possible sale last month, and that local and state political figures were fully behind the move. The sale would consolidate Raritan Bay's operations at the Perth Amboy facility, where Raritan Bay serves a large number of uninsured patients, while permitting the Old Bridge facility to continue operating with minimal disruption to its employees and community.

It remains to be seen whether the proposed sale will occur and have a lasting corrective effect on Raritan Bay's financial challenges. However, it is refreshing and encouraging to see the governing board and management of a hospital having the foresight and will to act, while they still have options, to remain true to their view of their hospital's mission.

[Image: Two nurses with baby in nursery, Toronto, Ontario, circa 1955, by Canadian Nurses Assoc.]

Don Vanarelli's Top 10 New Jersey Mediation Blogs!

Richard J. Webb — Sat, 11 Oct 2008 11:00:00 -0500

I was pleased to see that New Jersey's mediation community had moved far enough into the blogosphere to warrant a "top 10" list of New Jersey mediation blogs, and that this blog had made the list. Attorney and mediator Donald D. Vanarelli came up with the list and posted it here, and it was picked up as far away as New Zealand (by Geoff Sharp here)! Among the more active blogs mentioned were Sans Mediation World of ADR (by Marvin Schuldiner), New Jersey Family Law Matters (by fellow LexBlog client T. Sandburg Durst), NJ Family Legal Blog (by the Family Law Group at Fox Rothschild) and Don Vanarelli's own blog on NJ Elder Law, Estate and Special Needs Planning, Mediation and Collaborative Family Law.

Don Vanarelli's path crossed with mine nearly 20 years ago when we both practiced law at the same firm. I saw him again last year at a meeting of the Justice Marie Garibaldi Inn of Court on ADR, prior to the launch of his blog. Don has carved out a niche in the elder law practice area that is undoubtedly enhanced by his mediation training and experience. His blog provides some icing on that cake, and hopefully, will help spur others to join the ADR dialogue.

[Image: Top ten icon, by STyx and Producer]

Do Doctors Confess Errors Only When Caught?

Richard J. Webb — Fri, 10 Oct 2008 07:00:00 -0500

A study published on October 6, 2008 in the Archives of Pediatrics and Adolescent Medicine suggests that doctors will more frequently tell patients about errors that are obvious or likely to be detected than they will tell them of less apparent errors. A post by Jacob Goldstein in the Wall Street Journal's HealthBlog reviews the study and places its findings within the context of our evolving healthcare culture.

Doctors traditionally have been less than forthcoming in telling patients about errors because they fear potential lawsuits, and have been told consistently by defense attorneys to say nothing that could be construed as "an admission of guilt." Forces are at work to change this. These include:

- the "apology and disclosure movement" promoted by "Sorry Works";

- the enactment by some states of legislation precluding the use of "confessions" or apologies in subsequent malpractice litigation;

- required disclosure of errors that cause harm to patients under Joint Commission accreditation standards; and,

- a variety of other governmental and industry mandates for "transparency."

Aside from these external forces, many doctors and the hospitals in which they practice have begun to realize that it is in their own best interest to adopt and implement a program under which:

- medical errors are identified and disclosed;

- with an explanation of the error;

- an assurance that it will not be repeated;

- a sincere apology; and,

- an offer of just compensation.

These elements can be combined and put into practice using a variety of alternative dispute resolution techniques. The July/August issue of the Patient Safety & Quality Healthcare e-Newsletter contains an excellent summary of five approaches now deployed around the country: the "Rush Model," the VA Model," the "University of Michigan Model," the "Pew Mediation and ADR Model," and the "Internal Neutral Mediator Model."

The authors of that article, Gary A. Balcerzak and Kathryn K. Leonhardt, conclude that "the success of existing ADR models is promising. With the potential to promote disclosure, meet the needs of patients, reduce costs, and improve patient safety, ADR in Healthcare holds great promise for the future." I could not agree more.

[Image: People waiting for confession, Lourdes, France, by Jean-noel Lafargue, August 9, 2005]