Taking the Temperature of Health Care Disputes: The Latest Trends and the Effect of Business Interruption

Featuring: Joseph P. Farina (Retired Chief Judge, 11th Judicial Circuit, Florida), Christopher Keele, Esq and Hon. Gail S. Tusan, Senior Judge

The past two years have been tough on all of us, but for those in the health care industry, it has been incredibly challenging. The pandemic has taxed our nation’s health care system in ways few could have anticipated. The mental health strain on health care professionals alone has created a number of contractual disputes, as many workers have sought to get out of their employment contracts. This has created industry-wide business disruption at a time of maximum need.

“Throughout COVID, nurses have had to take on more and more duties while personnel shortages have plagued the entire industry,” explained Hon. Gail S. Tusan, Senior Judge, and JAMS mediator, arbitrator, special master/referee and hearing officer. “For some, this has led to the decision to leave their profession entirely. And as a result, disputes have arisen. We are also seeing doctors retiring early, thus looking to remove themselves from contractual obligations with their practice group. Challenges around these exit strategies have resulted in a steady increase in ADR.”

There is no doubt that the pandemic has caused interruption, turmoil and upheaval in the health care industry. “We are seeing more disputes concerning capacity for treatment, staffing shortages and provider availability, simply because the industry was so dramatically impacted by those factors during COVID,” stated Christopher Keele, Esq., JAMS mediator, arbitrator and special master/referee. “As the health crisis eventually wanes, I think there will also be more disputes over which services relating to treatment of COVID and COVID-related conditions are covered or should be reimbursed under health plans. This is likely to bring about new types of disputes going forward.”

As the health care landscape continues to evolve, business interruptions and resulting disputes will undoubtedly arise. Keele suggests several major trends will influence the industry over the next decade. As the marketplace moves toward value-based care and reimbursement, private equity will increase its investment in health care systems, making it possible to drive innovation as well as consolidation, which will accelerate the move toward a coordinated care model.

“In addition to traditional services disputes, I think we're going to see greater emphasis on health equity, with a focus on underserved populations as well as on elder care, long-COVID effects and the emerging fields of telemedicine. All of these areas will be ripe for disputes in the coming months and years. And ADR will provide an effective tool for resolving many of these disputes,” concluded Keele.

Virtual and Hybrid ADR Widely Accepted for Handling Disputes and Interruptions

The health care industry, much like other industries during the pandemic, has faced disruption. One way it is dealing with these challenges is by embracing virtual ADR to handle a wide range of disputes. The reasons for this are fairly apparent, as virtual arbitration and mediation can be conducted without exposing parties to the virus, but the benefits go well beyond health concerns.

“Virtual sessions are generally easier to schedule because the parties to the dispute don’t end up having to factor in travel, which comes with cost savings and reduced stress and anxiety associated with today’s somewhat unreliable flight schedules,” shared Hon. Joseph P. Farina, Retired Chief Judge, JAMS mediator, arbitrator and special master/referee. “On a more personal note, I have observed that participants in virtual sessions tend to be more professional and more empathetic of one another. This bodes well for promoting discussion, reaching an understanding and ultimately achieving a settlement.” 

Keele points out that virtual ADR makes it easier to have decision-makers or individuals with the ultimate authority available to participate in mediation proceedings. When it comes to arbitration, virtual sessions make it less challenging and less costly to have witnesses available.

While virtual ADR has been widely praised for its many benefits, some feel there are some drawbacks. “From the perspective of a neutral, when it comes to mediation, I find I’m better able to assess the temperature in the room more effectively when we’re meeting in person. This is one area where virtual [mediation] may have its shortcomings. However, all in all, I think virtual ADR is highly effective,” stated Judge Tusan.

A Peek Behind the Curtain

Virtual ADR is conducted in much the same manner as if the parties were meeting in person. According to Judge Farina, “The parties prepare the neutral much as they would if the session was face-to-face. In other words, parties provide pre-mediation statements, followed by pre-mediation calls that serve to inform and educate and to advise the neutral not only what's at the surface, but below the surface in terms of the nuances of the dispute.”

Judge Tusan starts the mediation process by carefully assessing each party to determine where they are. “I try to determine each party’s goals at the outset. What are they really trying to get out of this? Have they compromised in good faith, or do they feel taken advantage of? Factors such as these bear on each party’s willingness to compromise or reveal their inflexibility,” explained Tusan.

Regardless of the industry, a neutral’s role in the ADR process is always the same: to serve as an unbiased and impartial voice.

Is the Hybrid ADR Model Here to Stay?

As in-person business activities have resumed, ADR sessions are increasingly taking on a hybrid form, with some participants appearing in person and others participating remotely. Judge Tusan believes this will be the wave of the future. “I don't see hybrid ADR going away any time soon. I think virtual sessions offer additional flexibility that helps us in resolving disputes,” stated Tusan.

The Evolving Health Care Landscape

As the health care industry eventually emerges from the pandemic, the effects will likely be felt for years to come. These business interruptions will shape the landscape and inevitably require effective means of resolving disputes equitably and efficiently. ADR will remain a highly effective tool for settling disputes as they arise.