by Holly Hayes Grants distributed by the Health and Human Services (HHS) Agency for Healthcare Research and Quality (AHRQ) are moving forward with programs to address medical liability according to the Modern Healthcare April 2012 issue. See more here Beth Israel Deaconess Medical Center received a planning grant of almost $274,000 to institute a program they call Disclosure, Apology and Offer. The program “consists of disclosing when adverse events occur, investigating why they happened, sharing information with patients and their families and then offering financial compensation and bypassing the court system”. Dr. Alan Woodward, chairman of the Massachusetts Medical Society Committee on Professional Liability says, “malpractice cases in Massachusetts take five and a half years to resolve. Of the dollars physicians pay for liability premiums, only 30% goes to patients, with the rest covering insurance company overhead, attorney and expert witness fees and other court costs”. He added, “You can do a root-cause analysis at relatively low cost and put the findings on the table.” The University of Illinois at Chicago received a demonstration grant to expand its disclosure, apology and offer program to other area hospitals. Their program, called Seven Pillars, has been in place since 2006 and has resulted in reduction in malpractice claims and premiums. Most importantly, the investigation of adverse events has resulted in fewer incidents of patient harm. The New York State Unified Court System received a grant for a “judge-directed negotiation program” aimed at offering an “opportunity to settle before litigation gets into full swing”. Participating judges attended a three-day education session that included medical legal issues and mediation techniques. These programs are alternatives to tort reforms or special healthcare courts. Dr. Woodward believes it will be a long time before either of those alternatives is adopted in Massachusetts. 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.

In In re Checking Account Overdraft Litigation, No. 11-14282 (11th Cir. March 21, 2012). Maxine Given filed a class action against Manufacturers and Traders Trust Company (M&T Bank), alleging that M&T Bank improperly charged its checking account customers overdraft fees. The customer agreement included an arbitration clause obligating customers to arbitrate disputes arising out of the checking account; it also stated that whether a dispute was subject to arbitration was to be decided by an arbitrator. The district court denied M&T Bank’s motion to compel arbitration, finding that Given’s claims were not within the scope of the parties’ arbitration agreement. M&T Bank appealed. The Eleventh Circuit held that a clause delegating to an arbitrator the decision of whether the arbitration agreement covered a particular controversy was valid under the Federal Arbitration Act. The court stated that “[c]ourts should enforce valid delegation provisions as long as there is ‘clear and unmistakable’ evidence that the parties manifested their intent to arbitrate a gateway question.”

We stumbled upon the article “Arbitration of Environmental Disputes” by David McCutcheon from Fraser Milner Casgrain LLP. Here is an excerpt: For commercial dispute resolution arbitration has become the preferred solution that provides a fast, efficient and commercially appropriate approach to resolving complicated disputes in a reasonable timeframe. Although there is some use of arbitration for environmental disputes, court actions have predominated. The advantages of arbitration weigh heavily in favour of an expanded use in resolving environmental disputes. Arbitration clauses could easily be incorporated into remediation and indemnity agreements, agreements of purchase and sale, warranties and consulting agreements. Continue reading here (free registration may be required).

On May 29, 2012, the Second Circuit denied rehearing to Nat’l Supermarkets Ass’n v. Am. Express Travel Servs. Co. (In re Am. Express Merchants’ Litig.), No. 06-1871 cv (2d Cir. May 29, 2012). The underlying case (“Amex III“) had concluded that AT&T Mobility LLC v. Concepcion , 131 S.Ct. 1740 (2011) addresses state contract rights and does not apply to Amex III since Amex III deals with federal statutory rights. (read more about the case here and here) Judge Pooler, concurring in the denial of rehearing en banc stated, The limited holding in this case is not governed by the Supreme Court’s reasoning in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 179 L. Ed. 2d 742 (2011). Concepcion holds that the Federal Arbitration Act (“FAA”) preempts state laws hostile to arbitration, and focuses its analysis on preemption issues. In contrast, analysis in Amex III rests squarely on a vindication of statutory rights analysis — an issue untouched in Concepcion.” Find the order here.