Last week, the United States Supreme Court heard oral argument in a case involving the arbitrability of independent contractor agreements for transportation workers. 

The United States Court of Appeals for the Fifth Circuit has upheld a Texas federal court’s order dismissing a putative class action lawsuit after a plaintiff failed to pursue arbitration.

Caroline L. Osborne, Associate Professor of Law and Library Director at the West Virginia University College of Law, has published a useful research tool titled, “International Investment Law and Alternative Dispute Resolution: A Guide to Web Based Resources,” International Journal of Legal Information (forthcoming); WVU College of Law Research Paper No. 2018-004. 

Texas’ Eighth District Court of Appeals in El Paso has affirmed a trial court’s order stating two companies did not agree to exclusively arbitrate their claims against one another under Delaware law.

By Holly Hayes Congress has mandated the adoption of electronic health records (EHR) and put billions of dollars behind the mandate. Hospitals and professionals interested in seeking these funds need to achieve “meaningful use” (MU) of electronic health records. The Centers for Medicare and Medicaid Services (CMS) states: The Medicare and Medicaid EHR incentive programs will provide incentive payments to eligible professionals and eligible hospitals as they adopt, implement, upgrade or demonstrate meaningful use of certified EHR technology. The programs begin in 2011. These incentive programs are designed to support providers in this period of Health IT transition and instill the use of EHRs in meaningful ways to help our nation to improve the quality, safety and efficiency of patient health care. The proposed Stage 1 criteria for meaningful use focus on electronically capturing health information in a coded format, using that information to track key clinical conditions, communicating that information for care coordination purposes, and initiating the reporting of clinical quality measures and public health information. Read more at the CMS website here. The American Hospital Association reported on a recent survey of hospital chief information officers (CIO) regarding the implementation of EHRs and their concern with the mandate: Eight in 10 hospital chief information officers surveyed by PricewaterhouseCoopers’ Health Research Institute said they are concerned or very concerned they will not be able to demonstrate “meaningful use” of electronic health records within the federally established deadline of 2015. “Without a set of final rules in place, lack of clarity around certain criteria and reporting requirements has left some CIOs at an impasse, and that’s why requesting files under HITECH is the best solution for these reporting. “Fueling the concern are availability of skilled IT resources, infrastructure requirements, vendor readiness, and effecting behavioral change across the organization. More than one-third of CIOs are concerned or very concerned about vendor readiness overall. In particular, 44% of CIOs said their Health Information Exchange (HIE) vendors are not prepared for MU implementation or are undecided.” The findings are based on a survey of 120 members of the College of Healthcare Information Management Executives. Last month, 53 organizations representing hospitals, physicians and other providers, including the AHA, called on CMS to revise its proposed rule defining “meaningful use” of EHRs. A final rule is expected out soon. Read more here. As the Patient Protection and Affordable Care Act is implemented, we will keep you updated on areas of potential conflict. We welcome any comments on the demonstration of “meaningful use” of EHRs. 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.

By Holly Hayes The May/June edition of the Physician Executive Journal (PEJ) provides a step-by-step approach for reporting adverse events to patients. The seven-step approach is based on principles used in the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health. A summary of each of the seven steps recommended include: Step 1: Information gathering Prior to any meeting with the patient or family, it’s critical to gather as much information about the serious event as possible. A thorough investigation and review of the incident should be conducted in collaboration with risk management. Step 2: Identify stakeholders The next step is to identify those individuals who will participate in the meeting. We want to get the right people to the table. It is likely that there will be two or three members of the family present at the meeting, including the patient. The number of hospital representatives at the meeting should not significantly exceed the patient and his/her family. This may create the perception of a power differential and possibly be perceived as “bully” tactics. The meeting should generally not include legal representation from the patient and his/her family because the discussion is designed to be informational in nature. In addition, cases that meet the definition of a serious event do not necessarily meet the legal definition of malpractice. Step 3: Communicating the goal The meeting should start with introductions by all of the participants and the role and responsibilities of the staff… (and) should state the purpose of the meeting: “Our mission is to provide the highest quality of care to all of our patients. We take this very seriously. If we have an outcome that is not optimal, then we look very carefully at the care that we provided, and ask ourselves if we could have done better. In this case, there was a complication during the hospitalization. We looked into our processes with a multidisciplinary team. We believe that there may have been measures we could have taken to maximize the chances of success. When we believe this may be the case, we report these events to the state and meet with the family to discuss any mutual concerns.” Step 4: Active listening After the problem has been identified, the next step is to ascertain the self-interests or concerns of the patient and/or family. The Chief Medical Officer/Vice President of Medical Affairs (CMO/VPMA) should express a sincere interest in wanting to hear about their perceptions of the care rendered. This will require active listening. The family may be angry, confused, or sad. This is the opportunity for them to express their concerns and vent some of their frustrations. This may be difficult for the physician to hear, but all of the staff must be active listeners and demonstrate empathy and concern for the patient’s self-interests. The initial goal is for the family to build confidence in those around the table. The CMO/VPMA must create a “safe zone” for the family that allows them to express themselves without reprisal. Step 5: Seeking agreement At this stage, the CMO/VPMA should start to elicit areas of agreement. The family should be asked if there were positive experiences about the care rendered. Were there individuals who gave them confidence and helped anchor them during a difficult time? Agreements about the positive aspects of care should be reviewed and reinforced. The family should be asked if there were aspects about the care that they disagreed with, or found less than optimal. Concerns about the quality of care may be categorized into several areas based on agreements and disagreements. Step 6: Finding solutions The CMO/VPMA should ask the family how the care team could have done this better. Having the patient participate in the corrective action plan will add value and generate buy-in to any solutions formed. Of course, the solutions must be feasible. Step 7: Giving and getting The parties should reach agreement on the proposed corrective action items. In many ways, this is a “give” and “get” process. For the family, there was communication of information, the commitment by the hospital and staff to improve their performance, and an apology that the care delivered did not meet their expectations. For the hospital, the hospital is able to “get” conflict resolution, reduce risk for litigation, and restore trust in their partnership with the community and the families. Seeking out these mutual gain options is important in order to redefine success. The interests and motives should not only be aligned, but the family’s participation in the process will add value to the solutions proposed. If the patient and family view the process positively, then they will tend to embrace new achievements favorably and, most importantly, as fair. The process by which a solution is found is important for both the family and the CMO/VPMA. Each will have to justify any alignment in self-interest and “give-and-take” with their respective constituencies. For more information on the Harvard Program for Health Care Negotiation and Conflict Resolution, see here. We welcome your comments on this approach to communicating with patients about adverse events. 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.