Healthcare professionals must understand trends in medicine that arise from adversarial positioning. The classic need for formal legal representation in court adjudication of disputes from policy, contract, and personal injury/medical malpractice cases are shifting away from exclusive judicial court environment. There is a significant increase in private and binding dispute management using arbitration or its variances such as mini-trials, early neutral evaluation, case management during judicial settlement conferences, and moderated court required settlement conferences. These legal procedures have significant influence over our professional and personal lives when we are drawn into these adversarial disputes. Routinely, healthcare partnerships, administration and care delivery are now governed by arbitration clauses for disgruntled parties. It is profoundly dangerous for any healthcare provider to ignore or dismiss their risks and exposure in these private litigated disputes.
Boilerplate language in arbitration clauses that do not carefully define this private process, freely entered into by both parties long before a dispute arises, eliminates many of the procedural protections ensured through the traditional court system with judicial authority regulating the process. A simple example is past medical malpractice claims or suits having influence on a current malpractice defense. In the judicial setting, it is extremely rare for a judge to allow past claims or perceived mis-deeds by the plaintiff as evidence in a current dispute. In arbitration, in which no jury is present, you have ONLY a single privately paid lawyer or retired judge sitting as the sole purveyor over the dispute. They openly receive this “evidence” and will likely be influenced by the past record of a hospital or the healthcare providers. Even when defense objects, the plaintiff parties can enter evidence as “judicial notice” prejudicing the Arbitrator and strengthening a weak liability claim. Previous case exposure, complaints, and social media assassinations are easily introduced without restriction, damaging the providers reputation and adversely influencing an arbitrator trained only in the legal profession. In distinction, the traditional litigated court system with its federal rules of evidence is far more restrictive and protective, limiting a jury to the facts presented only in that case.
Arbitration is not a jury of one’s peers. Instead it is a contest between the skills of articulate lawyers that weave a distorted narrative. Therefore, healthcare providers must become educated in these alternative dispute resolution options. As more healthcare providers become co-arbitrators the influence of the legal profession controlling this private adjudication of disputes will balance and evolve into a fair consideration of evidence and facts. Healthcare providers are considered arbitration specialists with subject matter medical expertise and should provide an objective voice while mediating or arbitrating these dispute resolution proceedings. The shift toward mediation and arbitration in healthcare dispute management must be approached with great caution. As our professional roles evolve, it is imperative that healthcare professionals take on roles and responsibilities that allow them access to dispute management. The need for the medical subject matter expert to understand and weigh the relevance of the facts and expert testimony is critical.