David L. Noll, Associate Professor of Law at Rutgers School of Law, has published an interesting article titled “Public Litigation, Private Arbitration?” 18 Nev. L.J. 477 (2018). 

The United States Supreme Court has finally decided whether a collective action ban included in an employer’s arbitration agreement is lawful under the National Labor Relations Act. 

On Tuesday, ride-sharing company Uber formally announced it would no longer require sexual harassment and assault victims to arbitrate their claims against the company.

The United States Court of Appeals for the Fifth Circuit has affirmed a district court’s order compelling an independent contractor to arbitrate his Fair Labor Standards Act (“FLSA”) claims against a restaurant food delivery service.

By Holly Hayes Readers have asked us, “where does ADR fit in health care? It’s a good question and one we have contemplated ourselves. To learn more, we are undertaking an informal survey asking leaders in the field to share their thoughts and experiences on this topic. So far, we have learned that ADR techniques can be applied with the following groups: Physician Practices and Hospitals: As more and more physicians move out of private practice and into salaried positions with hospitals, alternative dispute resolution can help both groups reach agreement on the business model that will work best for them. A recent article from the New York Times, titled, “More Doctors Giving Up Private Practices” states, “As recently as 2005, more than two-thirds of medical practices were physician-owned –a share that had been relatively constant for many years, the Medical Group Management Association says. But within three years, that share dropped below 50 percent, and analysts say the slide has continued.” Physician and Physician: We posted about Dr. Howard Brody’s recommendation (post available here) that physicians take an active role in determining the most effective use of medical procedures to help decrease health care costs. This article from the New York Times, “Law May Do Little to Help Curb Unnecessary Care” states, “To truly change the national chronic overuse of medical care, there will have to be a substantial change in the way patients think about health care, how medicine is practiced and how it is paid for, economists and doctors say.” We believe conflict resolution techniques can greatly benefit this on-going discussion of appropriate medical care. Physician and Hospital: We have written about disruptive physician behavior here and how mediation can be helpful. Staff Member and Manager: The Joint Commission now requires that hospitals develop conflict management systems. See more here. As we learn more about conflict resolution in health care, we will post responses here. This list is not intended to be comprehensive and we welcome your comments. 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 A new study published in the March edition of the Joint Commission Journal on Quality and Patient Safety (the full article is available for purchase here) and reported on American Medical News (available here) found that physicians are less likely than risk managers to tell patients when a medical error occurs. Physicians, however, are more likely to use the word “error” in describing the event and are quicker to say, “I’m sorry” than risk managers. The study reports that these differences in disclosure attitudes could lead to conflict between risk managers and physicians and diminish the effectiveness of disclosing an error. As disclosures increasingly involve collaboration between these two groups, organizations can plan for this potential conflict and develop policies and procedures to resolve disagreements. The study authors recommend, “Programs to train physicians and risk managers in disclosure should include basic conflict resolution skills to reduce the likelihood that such disagreements will impair the disclosure process. In addition, institutional disclosure policies should clearly articulate who in the organization has final authority over whether and how disclosures will take place.” “Historically, the role of the risk manager has been perceived as really geared toward protecting the interests of the hospital, and part of that includes protecting the reputation and financial interests of the institution,” said David J. Loren, MD, lead author of the study. This could result in risk managers being less likely to use the words, “error” and to “apologize” to patients. Physicians, on the other hand, may be embarrassed that the event occurred and concerned about the potential of a malpractice suit and therefore less likely to want to disclose a medical error. The Agency for Healthcare Research and Quality (AHRQ) also reported on the study here. Almost 3,000 risk managers nationwide at health care facilities were surveyed in 2004-05 as part of the study. Physician responses came from nearly 1,300 doctors in Missouri and Washington state who were surveyed in 2003-04. Please send us any comments about this study or any experience you have had with cases about disclosing medical errors. 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.