By Holly Hayes An August American Medical Association (AMA) survey of 5,825 physicians illustrates a need for medical liability state and federal reforms. Survey responses indicated: 42.2% of physicians were sued, with 22.4% sued twice or more. Rates varied by specialty, but general surgeons and obstetrician-gynecologists were most likely to be sued (69.2%). Family physicians and general internists had similar rates (38.9% and 34%). Pediatricians and psychiatrists were sued the least. Physicians who had an ownership interest in a practice were at greater risk, with 47.5% reporting being sued, compared with 33.4% for those with no ownership interest. The majority of lawsuits never made it to the courtroom, according to 2008 data from the Physician Insurers Assn. of America, a trade group representing liability insurance companies owned or operated by physicians, hospitals and other health care professionals. Sixty-five percent were dropped, dismissed or withdrawn. About one in four claims was settled, and 4.5% were decided by alternative dispute mechanism. Of the 5% that went to trial, defendants won in 90% of cases, the PIAA said. But fighting a claim is costly. Defense against a claim averaged $22,163 for suits dropped, dismissed or withdrawn, and more than $100,000 for cases that went to trial, according to PIAA data. The frequency of medical liability lawsuits documented in the report illustrates the need for reforms at the state and federal levels, said AMA Immediate Past President J. James Rohack, MD. “Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence what specialty of medicine physicians practice, where they practice and when they retire,” Dr. Rohack said in a statement. “This litigious climate hurts patients’ access to physician care at a time when the nation is working to reduce unnecessary health care costs.” In June, The Agency for Healthcare Research and Quality (AHRQ) announced that seven demonstration grants for the Medical Liability Reform and Patient Safety initiative have been funded for a total amount of $19.7 million. Thirteen planning grants have also been funded for a total amount of $3.5 million. The grants support the implementation and evaluation of evidence-based patient safety and medical liability projects. See more here. The seven demonstration grants include models that meet one or more of the medical liability reform and patient safety initiative goals, including: “Reducing preventable harms. Informing injured patients promptly, and making efforts to provide prompt compensation. Promoting early disclosures and settlement, through a court-directed alternative dispute resolution model.” Dr. Rohack said the AMA will continue to push for reforms, including tort reform that has proven effective in Texas. “‘We’re committed to lowering health care costs to make it affordable to all Americans, and ending defensive medicine is a big part of that,’” he said. We welcome your comments on the use of ADR in medical liability lawsuits. 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.

Platts reports that the U.S. Mine Safety and Health Administration (MSHA) just launched a pilot mediation program. Here are the details: Washington (Platts)–20Aug2010/540 pm EDT/2140 GMT US mine safety regulators plan to revert to a speedier mediation process during a 90-day test period starting later this month in an effort to reduce the number of citations appealed by operators. The Mine Safety and Health Administration said Friday it plans to alter “safety and health conferences” so that mine operators can informally dispute citations before filing a formal appeal with the agency’s administrative review board. The pilot program will be tested starting August 31 at a pair of eastern coal mine district offices and one metal/non-metal office. The agency is considering reinstituting a conferencing system that was eliminated in 2007 partly in response to criticism that too many citations were being thrown out in a manner too friendly to the industry. A possible return and revision of the conferencing system represents a rare area of agreement between the Obama administration and the mining industry, which praised the plan. “We were pleased to hear that MSHA is considering revising its current safety conference procedure,” Tony Bumbico, vice president of safety for Arch Coal, said through a spokeswoman. “If approached objectively by all parties, the new conference guidelines have the potential to resolve legitimate disputes early in the process which would be to everyone’s benefit.” The National Mining Association, which has been pushing for a return to the old conferencing system, also lauded the plan. MSHA is seeking ways to reduce a backlog of 89,000 cases before the Federal Mine Safety and Health Review Commission, which a subject of congressional scrutiny both before and after April’s deadly Upper Big Branch blast. The death of 29 workers in the accident only added to the scrutiny. According to FMSHRC data, the number of cases filed during the 12 months ending October 1, 2008 more than doubled from the previous year to 8,900. The commission is on pace to set another record this year, with more than 9,100 cases filed through August 14, compared with 9,200 for the entire fiscal 2009. “It is clear that the current conferencing structure is not working,” MSHA Administrator Joe Main said in a statement. “By resolving factual disputes before a violation is contested, these citations will not be added to the enormous backlog of cases that have bogged down the judicial system.” The United Mine Workers of America and other safety advocates were leery of the program and its potential for departing from a multi-step process put in place last year. “If it’s exactly the same way as it was before — and that’s not clear — then that represents a step backward,” said union spokesman Phil Smith. “We don’t see it as making any progress, because the way it was before…gave the operators too many bites of the apple.” The new pilot program will allow both mine operators and miner representatives to participate in the conferences. Main said he hoped the program will make the agency’s enforcement more efficient. The program will start at three district offices: Coal District 2 in Mt. Pleasant, Pennsylvania; Coal District 6 in Pikeville, Kentucky, and the Metal/Nonmetal Southeast District in Birmingham, Alabama. –Peter Gartrell, peter_gartrell@platts.com

The August 20th issue of Health Lawyers Weekly, a publication by the American Health Lawyers Association features the following interesting case: A federal court in Kentucky held recently that a physician and hospital must arbitrate their contract dispute and enjoined the physician from proceeding with his state court action against the hospital. Greenview Hospital, Inc. and Dr. Eric Wooten entered into a purported contract on October 8, 2010. Several months later, Wooten sued Greenview asking a state court to find the arbitration provision of the purported contract void, to enforce the contract, and to award damages for breach. Wooten also alleged the contract was void as against public policy and was unconscionable. Greenview subsequently filed the instant action in federal district court seeking to compel arbitration and enjoin Wooten from pursuing his state court action. Wooten moved to dismiss, or alternatively, to stay the proceedings because of the pending state court action. The U.S. District court for the Western District of Kentucky found the balance of factors “strongly counsels against staying the case,” citing in particular “the nature of the significant federal rights at issue”—i.e., the Federal Arbitration Act (FAA) and the Anti-Injunction Act. Greenview argued the court should grant its motion to compel arbitration and enjoin Wooten from proceeding with his state court action. According to Wooten, however, the contract’s choice-of-law provision required the application of Kentucky law. Because the arbitration agreement was unenforceable under Kentucky law, the court could not compel arbitration, Wooten contended. Rejecting Wooten’s argument, the court noted Supreme Court precedent finding a general choice-of-law provision does not override an arbitration clause. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995). Examining the instant contract, the court found as in Mastrobuono, “the choice of law provision covers the rights and duties of the parties, while the arbitration clause covers arbitration, neither [clause] intrudes upon the other.” Thus, “[w]hile Kentucky law may otherwise govern the contract between the parties, it does not govern the arbitration clause or make it unenforceable,” the court held. The court went on to find arbitration should be compelled. Wooten did not dispute the existence of an agreement to arbitrate or that the claims raised by both parties were within the scope of that agreement. The court also enjoined Wooten from proceeding with his state court action, finding such action was not barred by the Anti-Injunction Act and “would serve to protect or effectuate this Court’s judgment.” Greenview Hosp., Inc. v. Wooten, No. 1:10-cv-00085-TBR (W.D. Ky. July 15, 2010). Read the full issue here. Find out more about the American Health Lawyers Association here.

We are happy to share with you that our blog Disputing turns five today! Disputing was originally conceived by Karl Bayer and Rob Hargrove as a forum for discussion of legal developments as they happen. We have come a long way since our very first blog post: Three Law Review Articles have cited Disputing (here, here and here). Disputing was mentioned by the Wall Street Journal for covering consumer arbitration clauses and the “Arbitration Fairness Day.” Disputing has also been cited by several CLE presentations in Texas. Disputing‘s blogmaster was invited to guest-blog at the Loree Reinsurance and Arbitration Law Forum and at Peter Vogel‘s Internet, Information Technology, & e-Discovery Blog (post available here). The Supreme Court of Texas Blog feeds Disputing‘s case summaries of decisions rendered by the Texas Supreme Court. Diane Levin, blogmaster of the award-winning Mediation Channel blog, has named Disputing as One of the Five ADR Blogs to Add to your Reading List. Disputing is listed on the French Arbitration Database-La Base de Données sur le Droit de l’Arbitrage Interne et International. Disputing has teamed up with Don Philbin’s ADR Highlight Reel and the Loree Reinsurance and Arbitration Law Forum to create the Commercial and Industry Arbitration and Mediation Group on LinkedIn. Disputing is also featured at Michael VanDervort’s ADR, Conflict Resolution and Exchange LinkedIn Group. Disputing is a mediate.com Featured Blog (read our posts here and here). Disputing is listed as a resource at the University of Oregon’s Master’s Degree Program In Conflict and Dispute Resolution program. We also have been honored to host commentaries and guest-posts by the following friends of this blog: Audrey L. Maness Don Philbin F. Peter Phillips Glen M. Wilkerson Honorable W. Royal Furgeson, Jr. James M. Gaitis Jane Reister Conard John C. Fleming John DeGroote Kent B. Scott Peter S. Vogel Philip J. Loree, Jr. Professor Alan Scott Rau Professor Peter Friedman Professor S.I. Strong Professor Thomas J. Stipanowich Richard Webb Rick Freeman We would like you to celebrate with us by leaving a reply on this post! The Disputing team, Karl Bayer, Alyson Chaky, Holly Hayes & Victoria VanBuren Technorati Tags: ADR, law, arbitration