The United States Court of Appeals for the Seventh Circuit has issued an opinion stating the availability of class arbitration is a threshold question for the courts, not an arbitrator, to decide.

Professor Martin H. Malin, Director of the Institute for Law and the Workplace at Chicago-Kent College of Law, and Deborah Ginsberg, Educational Technology Librarian at Chicago-Kent Law Library, have published “Flipping the Classroom to Teach Workplace ADR in an Intensive Environment,” 67 Journal of Legal Education 618 (2018). 

On Friday, the Supreme Court of Texas declined to consider whether a Travis County trial court’s order confirming an arbitration award should be overturned because no transcription of the arbitration hearing was created.

The Southern District of Texas has ordered a proposed class action lawsuit that was filed over an organization’s alleged violations of the Fair Labor Standards Act (“FLSA”) to arbitration.

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.

By Holly Hayes The Joint Commission (TJC) has patient care standards regarding patient rights. Standard RI.01.01.01 states: “The hospital respects, protects, and promotes patient rights.” The standard is scored by Elements of Performance (EPs) which include: 4. The hospital treats the patient in a dignified and respectful manner that supports his or her dignity. 7. The hospital respects the patient’s right to privacy. Even with those standards in place, The Los Angeles Times reported this week that some hospital staff members are using social networking to discuss patients on Facebook. Many hospitals are adopting no-tolerance policies for the release of patient information online, which covers everything from patient names to seemingly innocuous details such as weight. Los Angeles County’s Department of Health Services, for example, requires employees to sign an agreement that they will not release patient information through any non-county website. “If you’re giving any data about a patient at all, you’ve breached the privacy,” said Pam Lane, vice president of health informatics with the California Hospital Assn. “People are doing it and they are losing their jobs.” The state does not track online breaches of patient privacy separately from other breaches. So far this year, 686 breaches of patient privacy have been reported at hospitals statewide and substantiated by investigators at the California Department of Public Health, including four by healthcare workers. A number of the nation’s leading hospitals, including Cleveland Clinic and the Mayo Clinic, are raising awareness among their staff about how patient privacy protections such as the Health Insurance Portability and Accountability Act (HIPPA) apply online. “We already have guidelines; social media is simply another form of communication. It’s no different from e-mail or talking to someone in an elevator,” Ed Bennett (director of Web strategy at University of Maryland Medical System) said. “The safe advice is to assume anything you put out on a social media site has the potential to be public.” Let us hear your thoughts on patient privacy and social media. 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.