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Mediation of Health Care Disputes: An Opportunity to Heal or Or a Prescription for Disaster?

Mediation of Health Care Disputes: An Opportunity to Heal or Or a Prescription for Disaster?

Source: Health Care Law
Date: October 2010

Jerry P. Roscoe, Esq.
October 2010 A supplement to: Health Care Law By Jerry P . r oscoe Special to the Legal T he fact that the field of health care is often referred to as the remaining holdout when it comes to mediation is a result not only of the lack of integration within health care systems, but also to the lack of consensus as to whether mediation is an improvement over the status quo and, if it is, who should serve as mediators. Those who resist mediation fear that opening the doors of a complicated, multi- faceted and rapidly changing industry to a cadre of mediators with a “one size fits all” mentality and little experience in the field of health care would result in a toxic mess. Which is the best approach, how may it be put to use, and what are the relevant questions? Is MedIatIon an IMproveMent? In health care disputes, whether or not mediation is an improvement on the sta- tus quo may depend upon the mediator’s ability to integrate a working knowledge of medicine with the appropriate process. This must be more difficult than it sounds, as many matters are mediated twice, hard- ly an improvement over the status quo. The reason for this redundancy seems to be that the first mediator often treats the health care dispute as a typical zero- sum situation, seeing his or her role as a facilitator in dividing a monetary pie. Having heard of such mediators, health care decisionmakers often prefer a media- tor with more comprehensive subject matter expertise than mediation skill. The best solution seems to be a highly experienced mediator who has a facile knowledge of medicine and is attuned to the myriad issues presented by patients, physicians, staff, institutions, health care systems and insurers. Where does one find such a mediator? The fact is that, despite the debate on whether health care disputes are amenable to mediation, the mediation profession has already garnered much experience in the field. Rather than continuing to ask whether health care matters should be mediated and if so, who should do the work, perhaps the answer to these ques- tions lays in appreciation of the work that is being done in the field, as well as recog- nition of those who are doing it. Can dIsruptIve physICIans be MedIated? Few disruptive physicians exist, yet an entire industry has been created in order to identify, punish, train and regulate this small subset of physicians whose actions and emotions tend to impede effective and efficient health care delivery. Is there dis- ruptive behavior? Absolutely. But rather than being a product of pathology, such behavior is more likely a result of physi- cians who have not been equipped to deliver services while maintaining effective relationships in an environment of increas- ing pressures and limited resources. Rather than punish such doctors by exiling them to a week-long training camp with others bearing the disruptor label, a two-step process has proved successful. First, mediate the immediate situation to restore productivity to the workplace. Second, meet with the individual medical provider to help them understand that their goal of rendering quality medical care and building self-satisfaction will only be realized if they behave in a man- ner that meets the aforementioned goals. In other words, remind them of what it was that brought them to medicine in the first place, and show them the easiest way to attain it. Easiest and least disruptive are synonymous. The right mediator can do this in one or two days. MedICal Malpra Ct ICe MedIatIon Despite attempts to improve the quality of health care in the United States, bad out- comes occur on a regular basis. Some may be a result of incorrect decisions or bad judg- ment that ultimately prove incorrect, but that are not negligent. Others may be caused by judgment so impaired so as to constitute professional negligence. The causes of many outcomes may never be understood. Mediation of health Care disputes: An Opportunity to Heal Or a Prescription for Disaster? Jerry p. rosCoe is a nationally recognized mediator and arbitrator of health care and commer- cial disputes. He has also trained hundreds of health care and legal professionals in the art of resolving health care disputes. Roscoe is a neutral with JAMS, the Resolution Experts, with offices around the United States. He is resident in the JAMS Resolution Centers in Philadelphia, W ashington DC, and New Y ork. He may be reached at jroscoe@ jamsadr .com or at 202-533 2019.In all three cases, however, there are patients with the exact same needs. Patients want to understand what happened, want to comprehend how it happened, wish to learn whether steps could be taken to minimize the likelihood of it happening again, and would like to receive appropri- ate compensation for their injury. Many litigators, and some mediators, perceive medical negligence mediation as simply a question of who pays whom, and how much. The practices of experienced mediators who fall prey to this paradigm eventually devolve into a simple meeting whereby the neutral attempts to convince the parties that the mediator’s end result is the one that the parties should be led to. It becomes a process of pressure, persuasion and perseverance, but not of true progress. Simple monetary negotiations miss impor- tant opportunities to address the plaintiff’s familial, emotional, informational and structural financial needs. The oft-forgot- ten defendants have such needs as well — just talk to the spouse of a physician who has been sued. health Care Fraud Most health care institutions and their counsel do not realize that allegations of health care fraud brought by state and federal agencies may be mediated. Of course it requires the agreement of all par- ties, but Medicare and Medicaid pro- grams, and the agencies that enforce their myriad regulations, are increasingly ame- nable to resolving fraud cases through mediation. One week of mediation may eliminate the need for three years of discovery and another month or two of trials. In a recent nursing home fraud case, it was not until the third day of mediation that the gov- ernment realized that the overutilization they were alleging involved beds that were not even being billed to their program. More information gets exchanged soon- er in mediation than in litigation or the discovery process. If there are mitigating factors or legitimate defenses to allega- tions of fraud, there is no better forum to make that clear to the government than in mediation. health Care InstItutIons One Philadelphia hospital recently invited its department heads to take an entire day to learn how to employ media- tion-type tools to manage the inevitable conflicts that health care delivery produc- es. The program was so successful that programs are under way to explore the possibility of training each hospital depart- ment individually. Astute health care institutions have learned that when it comes to conflict, prevention and management is easier (and more pleasant) than cure. One day of mediation skill training can improve qual- ity while saving time, money and perhaps even lives. natIonal v aCCIne InJury CoMpensatIon prograM Living on a New Zealand farm at the age of 4, Liam Caldwell probably felt that life could not get any better. He was cor- rect, as it did not. His parents had decided that moving to the United States would provide their son opportunities not offered in their homeland. When it came time for Liam to enter the public school system, he received the measles, mumps and rubella (MMR) vaccines required for admission to the school system. Such vac- cinations were not required in New Zealand. Soon thereafter, Liam became quite ill, eventually becoming paraplegic. Not only were the family’s dreams of opportunity shattered, they now were saddled with what would prove to be millions of dollars of medical and injury-related expenses. They filed for compensation from the National Vaccine Injury Compensation Program. Fulfilling its responsibility, the U.S. Department of Justice, through its special master, raised questions regarding the alleged relationship between the vaccine, its alleged impact and the responsibility of the United States, if any. This matter probably could have been litigated, and perhaps the family would have recovered the millions that eventu- ally would change hands as a result of mediation. What litigation would not have remedied, though, was the incredible guilt experienced by parents who felt that, but for their decision to move to the United States, their youngest son would be per- fectly well. Should health care disputes be mediat- ed? Considering the opportunities described above, the answer would appear to be yes. In fact, there are qualified neu- trals already on the job. Given the intrica- cies of health care mediation, finding one may be worth the search. • Tuesday, OcTOber 26, 2010 Health care Law Reprinted with permission from the October 26, 2010 edition of THE LEGAL INTELLIGENCER © 2010 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com. # 201-11-10-06 www.jamsadr.com

The fact that the field of health care is often referred to as the remaining holdout when it comes to mediation is a result not only of the lack of integration within health care systems, but also to the lack of consensus as to whether mediation is an improvement over the status quo and, if it is, who should serve as mediators. Those who resist mediation fear that opening the doors of a complicated, multifaceted and rapidly changing industry to a cadre of mediators with a "one size fits all" mentality and little experience in the field of health care would result in a toxic mess. Which is the best approach, how may it be put to use, and what are the relevant questions?

 

Is Mediation an Improvement?

In health care disputes, whether or not mediation is an improvement on the status quo may depend upon the mediator's ability to integrate a working knowledge of medicine with the appropriate process. This must be more difficult than it sounds, as many matters are mediated twice, hardly an improvement over the status quo.

The reason for this redundancy seems to be that the first mediator often treats the health care dispute as a typical zero-sum situation, seeing his or her role as a facilitator in dividing a monetary pie. Having heard of such mediators, health care decision-makers often prefer a mediator with more comprehensive subject matter expertise than mediation skill. The best solution seems to be a highly experienced mediator who has a facile knowledge of medicine and is attuned to the myriad issues presented by patients, physicians, staff, institutions, health care systems and insurers. Where does one find such a mediator? The fact is that, despite the debate on whether health care disputes are amenable to mediation, the mediation profession has already garnered much experience in the field. Rather than continuing to ask whether health care matters should be mediated and if so, who should do the work, perhaps the answer to these questions lays in appreciation of the work that is being done in the field, as well as recognition of those who are doing it.

 

Can Disruptive Physicians be Mediated?

Few disruptive physicians exist, yet an entire industry has been created in order to identify, punish, train and regulate this small subset of physicians whose actions and emotions tend to impede effective and efficient health care delivery. Is there disruptive behavior? Absolutely. But rather than being a product of pathology, such behavior is more likely a result of physicians who have not been equipped to deliver services while maintaining effective relationships in an environment of increasing pressures and limited resources. Rather than punish such doctors by exiling them to a week-long training camp with others bearing the disruptor label, a two-step process has proved successful. First, mediate the immediate situation to restore productivity to the workplace. Second, meet with the individual medical provider to help them understand that their goal of rendering quality medical care and building self-satisfaction will only be realized if they behave in a manner that meets the aforementioned goals. In other words, remind them of what it was that brought them to medicine in the first place, and show them the easiest way to attain it. Easiest and least disruptive are synonymous. The right mediator can do this in one or two days.

 

Medical Malpractice Mediation

Despite attempts to improve the quality of health care in the United States, bad outcomes occur on a regular basis. Some may be a result of incorrect decisions or bad judgment that ultimately prove incorrect, but that are not negligent. Others may be caused by judgment so impaired so as to constitute professional negligence. The causes of many outcomes may never be understood. In all three cases, however, there are patients with the exact same needs. Patients want to understand what happened, want to comprehend how it happened, wish to learn whether steps could be taken to minimize the likelihood of it happening again, and would like to receive appropriate compensation for their injury. Many litigators, and some mediators, perceive medical negligence mediation as simply a question of who pays whom, and how much. The practices of experienced mediators who fall prey to this paradigm eventually devolve into a simple meeting whereby the neutral attempts to convince the parties that the mediator's end result is the one that the parties should be led to. It becomes a process of pressure, persuasion and perseverance, but not of true progress. Simple monetary negotiations miss important opportunities to address the plaintiff's familial, motional, informational and structural financial needs. The oft-forgotten defendants have such needs as well — just talk to the spouse of a physician who has been sued.

 

Health Care Fraud

Most health care institutions and their counsel do not realize that allegations of health care fraud brought by state and federal agencies may be mediated. Of course it requires the agreement of all parties, but Medicare and Medicaid programs, and the agencies that enforce their myriad regulations, are increasingly amenable to resolving fraud cases through mediation. One week of mediation may eliminate the need for three years of discovery and another month or two of trials. In a recent nursing home fraud case, it was not until the third day of mediation that the government realized that the overutilization they were alleging involved beds that were not even being billed to their program. More information gets exchanged sooner in mediation than in litigation or the discovery process. If there are mitigating factors or legitimate defenses to allegations of fraud, there is no better forum to make that clear to the government than in mediation.

 

Health Care Institutions

One Philadelphia hospital recently invited its department heads to take an entire day to learn how to employ mediation-type tools to manage the inevitable conflicts that health care delivery produces. The program was so successful that programs are under way to explore the possibility of training each hospital department individually. Astute health care institutions have learned that when it comes to conflict, prevention and management is easier (and more pleasant) than cure. One day of mediation skill training can improve quality while saving time, money and perhaps even lives.

 

National Vaccine Injury Compensation Program

Living on a New Zealand farm at the age of 4, Liam Caldwell probably felt that life could not get any better. He was correct, as it did not. His parents had decided that moving to the United States would provide their son opportunities not offered in their homeland. When it came time for Liam to enter the public school system, he received the measles, mumps and rubella (MMR) vaccines required for admission to the school system. Such vaccinations were not required in New Zealand. Soon thereafter, Liam became quite ill, eventually becoming paraplegic. Not only were the family's dreams of opportunity shattered, they now were saddled with what would prove to be millions of dollars of medical and injury-related expenses. They filed for compensation from the National Vaccine Injury Compensation Program. Fulfilling its responsibility, the U.S. Department of Justice, through its special master, raised questions regarding the alleged relationship between the vaccine, its alleged impact and the responsibility of the United States, if any. This matter probably could have been litigated, and perhaps the family would have recovered the millions that eventually would change hands as a result of mediation. What litigation would not have remedied, though, was the incredible guilt experienced by parents who felt that, but for their decision to move to the United States, their youngest son would be perfectly well. Should health care disputes be mediated? Considering the opportunities described above, the answer would appear to be yes. In fact, there are qualified neutrals already on the job. Given the intricacies of health care mediation, finding one may be worth the search. •