Hon. Wayne D. Brazil (Ret.)

T: 415-982-5267
F: 415-982-5287
Health Care

Judge Wayne Brazil’s work on the bench and at JAMS has included deep immersion in health care law from an unusually rich spectrum of perspectives. Because he has been confronted with so many contested health care issues in so many different settings, he has developed a sophisticated understanding of the health care system as a whole and of the dynamics between its most significant components.

Representative Matters

Arbitrations Involving Contract Disputes Between Physicians, Practice Groups, Hospitals, and National Providers of Comprehensive Packages of Support for Medical Practices

  • Arbitrated to award complex dispute between physicians formerly in same practice group; issues included compliance with and administration of multiple and differing contracts and privileges with several hospitals, competing entitlements to income streams, allegations of fraud and sub-professional practices, defamation, and intentional interference with established and prospective business relationships.
  • Arbitrated to award multi-layered disputes between physicians, practice groups, and the national companies that provided (under MSA’s) complete packages of support for medical practices: sophisticated diagnostic and treatment technology, professional staff, physical facilities, as well as accounting, billing and collection services. Issues included, inter alia, the enforceability of provisions in shareholder agreements and/or MSAs purporting to bar recovery for consequential damages and restricting competition, conspiracy to steal patients and divert revenue streams, and fraud through manipulation of accounting.

Contract Disputes Between Hospitals and Their Service Providers

  • Mediated disputes involving long range relationships (verging on joint ventures) between hospital chains and providers of comprehensive ESI systems for creating, sorting, organizing, and retrieving sensitive information (generated by patients, staff, or doctors) about patients’ diagnoses, treatments, and their status at time of release, as well as for scheduling follow-up and for billing and collections.

False Claims Act

  • Mediated, to settlement at relatively early stage, False Claims Act case brought by experienced plaintiffs’ counsel against major provider of health monitoring services that faced potentially huge damages/penalties on allegations of outsourcing components of sophisticated, comprehensive systems for gathering real-time data from and generating reports about patients with wide range of cardiac conditions.

Insurance

  • Arbitrated or mediated cases arising under ERISA or under private insurance contracts, e.g., coverage, bad faith, third party liability, as well as many cases that have pitted carriers against carriers.
  • Helped a union and a large network of hospitals and providers negotiate a multi-year contract for provision of health care benefits to members of the union.
  • Resolved many personal injury and disability cases that required compromising or satisfying liens held by health care providers.
  • Published opinions include cutting edge decisions about scope of duty to defend and duty to indemnify.

Malpractice

  • Conducted settlement conferences in many medical malpractice cases.

Employment and Labor Relations in the Health Care Industry

  • Alleged wrongful termination (in breach of contract) of high level hospital executive.
  • Alleged wrongful termination of health care workers.
  • Labor disputes between hospitals and employees.

Innovation, Cutting Edge Science, and Intellectual Property in Health Care

  • Multiple mock trials in patent cases involving cutting edge medical science (e.g., in pharmaceuticals and in bio-medical research and products), as well as the economics of developing and marketing sophisticated diagnostic and treatment tools.
  • Mediated (through multiple sessions) disputes between a university hospital, some of its physicians, and a product manufacturer over multi-billion dollar income streams generated by innovative systems for treating wounds.

Disability Suits Against Hospitals or Medical Practices

  • Settled cases brought by disabled persons alleging denial of equal access to medical facilities and professional services.

Health Care Fraud

  • Had pre-trial responsibilities and conducted settlement conferences in cases involving allegations of systematic fraud by doctors or institutions, fictitious patients, or over-reaching claimants.

Books, Articles, and Chapters in Treatises

  • Shaking Decision Trees for Risks and Rewards (with Majorie Aaron), 22 ABA Dispute Resolution Magazine 12, Fall 2015
  • Early Neutral Evaluation: A Guide For Neutrals, Advocates, and ADR Program Designers, Dispute Resolution Section, ABA, forthcoming
  • Effective Approaches to Settlement: A Handbook for Lawyers and Judges, published by Prentice Hall Law and Business, 1988
  • Settling Civil Suits: Litigators' Views About Appropriate Roles and Effective Techniques for Federal Judges, ABA Press, 1985
  • Managing Complex Litigation: A Practical Guide to the Use of Special Masters (with Geoffrey C. Hazard and Paul R. Rice), American Bar Foundation, 1983
  • Thoughts About Impasse for Mediators in Court Programs, 15 Disp. Res. Mag. 11, Winter 2009
  • ENE or Mediation? When Might ENE Deliver More Value? 14 Disp. Res. Mag. 10, Fall 2007
  • Professionalism and Misguided Negotiating in The Negotiator’s Fieldbook; The Desk Reference for the Experienced Negotiator, ed. by Andrea Kupfer Schneider and Christopher Honeyman, ABA, 2006

Honors, Memberships, and Professional Activities

  • Recognized as a Top California Neutral "Rising Star," Daily Journal, 2012
  • The Mediation Society of Northern California: Annual Award for “Outstanding Contribution in the Field of Alternative Dispute Resolution,” 2007
  • California Dispute Resolution Council: Donald Weckstein Award for “Outstanding Contribution to the Profession of ADR Neutrals,” 2007
  • American College of Civil Trial Mediators (national association headquartered in Florida): award for “Outstanding Achievement in the Advancement of Alternative Dispute Resolution,” 2005
  • "Using Mind Over Matter," ADR Profile, Daily Journal, September 14, 2012

Background and Education

  • D'Alemberte-Raven Award, American Bar Association Secton of Dispute Resolution, 2009
  • Member, American Bar Association Section of Dispute Resolution
  • Law Professor (“Professor from Practice”), Berkeley Law (Boalt Hall), University of California, Berkeley, full-time 2009-2011; part-time 2011-2014
  • United States Magistrate Judge, United States District Court, Northern District of California, June 1984-October 2009
  • Professor of Law, Hastings College of the Law, University of California, San Francisco, California, Courses: Civil Procedure and Civil Rights, 1980-1984
  • Associate Professor of Law, University of Missouri, Columbia, Federal Courts, Civil Procedure, Professional Responsibility, 1978-1980
  • Farella, Braun & Martel, Litigation Associate, San Francisco, California, 1975-1977
  • J.D., University of California, Berkeley Law (formerly Boalt Hall School of Law), Order of the Coif, 1975
  • Ph.D. in American Political and Cultural History, Modern European and American Intellectual History, Harvard University, 1975
  • M.A. in American History, Harvard University, Woodrow Wilson Fellow, 1967
  • B.A., Stanford University, Graduated with Great Distinction, Lloyd W. Dinkelspiel Award, Phi Beta Kappa, 1966

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