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Cost Efficient Healthcare Arbitration

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Cost Efficient Healthcare Arbitration

Source: Headnotes - Dallas Bar Association
Date: February 2018

Cecilia H. Morgan, Esq.

Resolution Centers


16 Headnotes l Dallas Bar Association February 2018 resources to needy families who are otherwise unlikely to achieve results beneficial to their children,” added James Dondero of Highland Capital Management. Donors to the DVAP Endowment are encouraged to make gifts in honor of their legal heroes. Aubrey Connat- ser, of Connatser Family Law, stepped up to make a gift of $50,000 in honor of late Dallas family law attorney Ken Fuller. The DVAP Endowment is also accepting planned giving gifts. Jerry Alexander, of Passman & Jones, P.C., is contributing $50,000 as part of his planned giving. “It is a privilege to share whatever you can with this most worthy of causes—that of equal access to justice. It may be the most impor- tant thing lawyers do,” he stated. Michael Hurst’s leadership in the establishment and initial funding of the DVAP Endowment is a meaning- ful contribution to a lasting legacy for Dallas—equal access to justice. In the words of U.S. Supreme Court Justice Hugo Black, back in 1964, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” The DVAP Endow- ment will help to make the goal of equal access to justice for all closer to reality in Dallas County. If you would like to contribute to the DVAP Endowment, or would like further information, please contact Alicia Her- nandez at ahernandez@dallasbar.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org. DV AP Endowment Ensures the Future of Access to Justice in Dallas CONTINUED FROM PAGE 1 Arbitrations have become more preva- lent in the healthcare industry. The most common complaint about arbitration is that it is too much like litigation; it is too expen- sive, slow and consumed by procedural bat- tles tangential to healthcare business inter- ests. Since healthcare is such a highly regu- lated field, healthcare disputes lend them- selves to arbitration; healthcare laws and technical language are often best deciphered by a healthcare-savvy arbitrator. . The alter- native to arbitration is trial by judge and/or jury with its accompanying risks. Consider the following baker’s dozen “dos and don’ts” prior to a final arbitration hearing: 1. Independent administration is best. The administrative body—such as JAMS, American Health Lawyers Association (AHLA) or the American Arbitration Association (AAA): • identifies the arbitrator by a fair pro- cess with disclosures, • has trained staff to answer questions and provide administrative support, and • provides rules, the hearing location and office access for the parties and attorneys. Ad hoc arbitration administration is often stalled by disputes over ex parte com- munications and payment. 2. Consult with the independent admin- istrative body to determine the rules which best meet the parties’ needs. A time-tested and published set of rules clarifies the dis- covery protocols, hearing location selection and form of award, which minimize costs, while providing a full, fair hearing. 3. The parties can bypass the lengthy arbitrator selection process by agreeing on the arbitrator in a simple phone call between lead counsel. Counsel can select an arbitrator based on her unique health- care regulations expertise and availability at a proper price point. 4. One arbitrator is much less expen- sive than a panel. A single arbitrator avoids the substantial cost of calendaring multiple arbitrators, along with parties and witnesses. When the parties cannot agree to one arbi- trator, designate one panel member as the discovery arbitrator. 5. Prepare for the preliminary schedul- ing conference. Most professional arbitra- tors provide a template of the matters to be considered in the initial hearing. Contact opposing counsel to agree to the procedures and deadlines that best suit the parties’ needs. Include your client in the prepara- tion for the hearing. 6. Attend the preliminary scheduling conference telephonically at a time when all—including the client—can actively participate. Set realistic time deadlines that will be honored. Agree on published discov- ery protocols to limit paper discovery and number of depositions. Consider including the parties’ IT professional in the confer- ence; they may prepare exhibits—such as spreadsheets of complicated medical bill- ing information—that may be used by all parties at the hearing. Number the exhibits consecutively starting with the exchange of documents through the deposition process. Discuss pre-marking exhibits, preparation of joint exhibit lists and the process for resolu- tion of the admissibility of exhibits. Timely circulate the scheduling order to all inter- ested parties and witnesses for calendaring. 7. Use e-discovery and file only the dis- covery which the arbitrator must review, paring down discovery to avoid duplicated submissions of the same information. 8. Waive summary disposition except on discrete issues and schedule time for the proper filing of the motion, responses and decisions. 9. Think about those witnesses who can testify via video or Skype as opposed to those that may testify by affidavit or depo- sition. Schedule any doctors’ depositions early in the process—and when they are not on call—to avoid rescheduling due to medical emergencies. 10. Schedule a conference between lead counsel to enter into stipulations. Agree on a discovery dispute resolution process, e.g., certificate of conference pro- cess, to limit hearings with the arbitrator. 11. Pay arbitrator’s invoices promptly to ensure timely hearings and decisions. 13. Schedule a mediation with a health- care mediator. Since over fifty percent of convened arbitrations never reach final hearing and award, a properly timed media- tion results in settlement in more than fifty percent of cases. There are many similar suggestions for the hearing itself. The hearing is sig- nificantly expedited by stipulations on all documents, Skype or video depositions and limiting expert testimony to affidavits and to cross examination. HN Cecilia Morgan is an attorney/mediator/arbitrator with JAMS and may be reached at cmorgan@jamsadr.com. Geoff Drucker is the Director of the AHLA Dispute Resolution Service and may be reached at gdrucker@healthlawyers.org. Cost Efficient Healthcare Arbitration BY CECILIA MORGAN AND GEOFF DRUCKER Focus Employee Benefits & Executive Compensation and Health Law BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL ?? Volunteer as an Attorney Advisor ?? Judge mock trial Be a compeOOon judge. No liO ga O on experience necessary! Earn CLE credit! Mul O ple dates available. ?? Help with competitions Mock Trial Compe ??on Dates: February 3 and March 2 -3, 2018 See website for details: www.texashighschoolmocktrial.com To volunteer, or for more informa ?on: mgarcia@dallasbar.org | (214) 220 -7484. Need Referrals? Take out an Area of Practice and/or Foreign Language Proficiency listing in the 2018 DBA Member Directory to get great exposure for your practice. For just $25 per listing you will be included in both the printed and online DBA Member directory. Listing Cost: $25.00 For more information and an order form contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.