Class 8

Three Classes of Disputes (another way to look at them)

1. Vertical Disputes (Disputes with insiders, people in close relationship with each other).
   • Management
   • Staff
   • Employees
   • Patients
2. Horizontal Disputes (Disputes with outsiders)
   • Between Organizations
   • Between Groups of Organizations
3. Culture Disputes
   • Profit
   • Non-Profit
   • Public
   • Private
   • Treatment
   • Research

Parties in Health Care have a real interest in finding out-of-court solutions

1. They are in ongoing beneficial relationships that have great value
2. The conflicts are exacerbated by non-legal issues
   • The high, life altering stakes
   • The strong emotions and egos of the people involved
   • The complex technical issues and facts
3. They often have ADR provisions in contracts that may or may not match their needs.

Class Eight Covers:

1. Coverage Disputes
2. Bioethical Disputes

Coverage Disputes

1. These are a byproduct of the conflict between the almost unlimited cost of medical treatment and the limited resources that exist to pay for it.
2. Further, most coverage issues are seen as matters of life and death and they are over areas of treatment that often do not have fixed, known outcomes.  Consider the debate over bone marrow transplants, ECMO for newborns, fontain surgery.
3. An aging population also drives the cost of treatment up.
4. Capitation schemes increase the financial stakes for all involved.
5. Involve contract interpretation of terms that may not be as clear as they seem.  Some important terms are:
   • "medical necessity"
   • "reasonable and customary"
   • "experimental"
   • "pre-existing"
   • "excluded"
6. ERISA -- important and conflicting
   • Requires a "full and fair" review.
   • Pre-empts state law (except for corporate negligence)
   • Expensive to litigate, but with limited awards (because of public policy considerations)
7. Considerations for ADR/CRM (conflict resolution mechanisms) include:
   • Denials of care generally result in every free appeal being taken.
   • For every 5,000,000 payments denied, only 500 law suits are filed, maybe less.
   • Ideally a CRM for coverage disputes will kick in only after suit is filed, or
   • Will replace a step that costs the same as the current administrative structure (e.g. independent review boards).
   • Will overcome subscribers distrust of the mixture of law and medicine that a CRM appears to invoke
   • Will have subscriber participation and will educate subscribers in order to make the programs more appealing (e.g. subscribers/insureds may have input on the composition of panels or the choice of a panel member).
   • Also, consider that you may wish to set a precedent or avoid setting one.
   • Note that many precedents can be removed by amending the terms of plans (AIDS and Allergy coverage issues were resolved this way).
8. Reprise:  Experimental procedures cases have all the possible health care issues with more intensity.
9. Advisory, confidential arbitration often works well when triggered by filing suit, or binding arbitration triggered by the filing of suit and a large claim amount.
10. More below ...
    • That is, often a third party neutral fact finder can calm things down once suit has been filed and removed to federal court (ERISA pre-emption) -- an advisory arbitration is often useful here.
    • Often time and expense can be saved if a large claim amount is arbitrated (whereas if the filing of suit automatically triggers full-blown arbitration, parties may file suit in order to invoke it) with all parties paying the expense equally.

Bioethical Dilemmas (a better description than bioethical disputes). Image to keep in mind for every dilemma is that of the dialysis zombie, living dead.  Serious issues often arise when:

• Care is futile, surrogate refuses to accept
• Care is expensive, capitation wants to cut losses
• Results are uncertain (are you doing something "for" the patient or "to" the patient)

Typical Examples of bioethical dilemmas

1. Terminal cancer patients
2. Terminal premature infants
3. Heart transplants
4. Patient right to know questions
5. Refusal to accept care by an adult or a child
6. Frequent fliers.

Solution:  Mediation *but*

• A fair and just resolution vs.
• An intellectually satisfying resolution
• Transformative Consultation
  1. Begins in seperate caucuses:  this increases honesty and aids in preparation
  2. Allow internal differences within each group to work out before joint sessions rather than surface in such a way as to cause increased conflict.  Clarifies positions for presentation purposes.
  3. Be aware of the issue of professional distancing that occurs between health care providers and the terminally ill.
     NOTE:  A successful program exists for modeling.
  4. Avoid true (outside) neutrals:
     • Fits the drive for risk aversion and the disbelief in true confidentiality that often applies.
     • Is future oriented (the patient will live, die or have quality of life issues in the future).
     • Provides a facilitator/consultant who is aware of all the ghosts at the table.
     • Creates institutional trust in the mediator.
  5. Choice of mediators:
     • Trained senior nurses or patient representatives/social services wokers
     • Consultants or staff members also work well (if the consultant is closely aligned, has historical ties with, the institution).
     • Need to be knowledgeable about the legal and ethical issues in bioethical dilemmas (may need specific training)
     • Have access to outside fact finders when appropriate.
     • Trained and skilled in mediation principles.
     • Knows enough medicine to sharpen issues, provide a platform for agreement.
  6. Exclude as mediators
     • Senior administrators (they will dominate decisions more than you might expect)
     • Risk management staff
     • Hospital attorneys and litigators
  7. Stages of the process
     • Assessment
       1. Introduction
       2. Convene seperate meetings
       3. Obtain medical fact consensus (may need to start with very basic facts)
       4. After consensus, discuss care options (to avoid "lock in")
       5. Convene mediation session for parties.
     • Development
       1. Determine if the parties are all properly educated.
       2. Educate the parties who need to know more.
       3. Determine if the patient is competent ("decisionally capable"  -- a patient may be capable of choosing a surrogate, but not capable of understanding treatment options) for decision needed and if surrogate is competent.
       4. Educate about the uncertainty:  no matter how much we want it to be, medicine is not magic.
       5. Frame the case, especially the history of family conflicts (as appropriate).
       6. Identify Legal and Ethical Principles.
     • Resolution
       1. Decide/determine who has authority to make decisions
       2. Determine what support is necessary for the decision maker (education/emotional/social)
       3. Identify the principled solution
       4. Follow through to see that the solution is implemented.
     • Other Obligations:
       1. Provide the non-health care providers with neutral space where they do not feel pressured or threatened.
       2. Keep the necessary guidelines in mind (see below)
     • Necessary Guidelines
       1. A patient who is capable must be allowed to make their own decisions.
       2. Choice of surrogates must comply with applicable law.
       3. Parents can consent for children to receive care, but they are not equally free to deny care and there may be manditory reporting if a denial of care occurs.

Copyright 2000 by Stephen R. Marsh
http://adrr.com/smarsh/