ADR in Healthcare: What You Need to Know

Introduction 

Modern healthcare has changed exponentially from traditional approaches, a fact that has increased the propensity for disputes between healthcare professionals and patients. Traditionally, the healthcare professional was the patient’s champion who was accorded a high level of autonomy to fight diseases and ailment. Patients also had a high inclination to accept any and all decisions made by professionals, hence leaving the only answers to their professional associations. In the current information age, however, patients are empowered and will aspire to be involved, informed and consulted (Ong, 2013; Amirthalingam, 2017). As professionals seek to balance between doing what is best for the patient, adhering to the wishes of patients and following myriad protocols, laws, rules, and regulations contemporaneously, propensity for dispute is high. Unfortunately, even a single dispute has the potential to be debilitating to a hospital more when resolved acrimoniously or in an adversarial manner, such as through limitation (Ong, 2013). It is based on the above that alternative dispute resolution (ADR) is an invaluable tool for any hospital. Further, settling disputes without acrimony is an essential part of the Christian World View. Several options for ADR are available to hospitals and healthcare professionals and can, if utilized properly lead mitigate the vagaries that litigation often visits upon hospitals.

Causes of Disputes in Modern Hospitals 

A modern hospital has become a magnet for disputes and professionals do not even need to act unethically to be sued. A physician can get sued for saving the life of a patient who had issued ‘do not resuscitate’ orders, even if the patient fully recovers (Ong, 2013). Conversely, a surgeon can be sued for using a pint of blood to save a patient who, for religious reasons are opposed to blood transfusion. These are just very limited examples of massive disputes that can arise when healthcare professionals merely do what they are supposed to be doing in a hospital. It is also fair to state that in some cases, errors do happen in the healthcare profession leading grotesque mistakes that attract litigation (Amirthalingam, 2017). Finally, there are also bad apples in the profession who will act unethically causing pain and suffering to patients; hence attracting legal and regulatory liabilities to hospitals. Conversely, there are also immoral patients who seek to abuse litigation as a means of self-enrichment or misplaced patients who feel aggrieved without valid ground. Whichever way a dispute arises, it does has the potential to be debilitating to a hospital in terms of time, money, manpower or reputation; hence it must be handled effectively (Ong, 2013).

The relevance of ADR in Healthcare 

ADR is relevant to healthcare as a positive option for resolving the myriad disputes that may happen in a healthcare institution. The primary significance of ADR is the role it plays in the avoidance of litigation and all the vagaries that accompany court cases. Modern litigation has become extremely adversarial with parties going out of their way to tear into one another in search of a victory (Bowe, 2014). Among the vagaries for litigation for a hospital is pecuniary expenses as court cases are expensive even if the hospital eventually wins. The second cost of court cases is time as crucial members of staff will spend a lot of time preparing for the case and also trying the case. A third cost is in terms of reputation as court cases are public in nature and healthcare related cases will also often get media coverage. The cost above can still happen even when a hospital and its staff have not done anything wrong (Ong, 2013). ADR accords hospitals the opportunity to avoid all the above by having disputes resolved amicably.

Alternative Dispute Resolution Options 

Negotiation 

Negotiation is the simplest and most straightforward form of ADR making it the best approach to solving simple disputes or those lacking acrimony. Negotiations can be defined simply as discussions aimed at arriving at an agreement (Bowe, 2014). Negotiation is a biblical concept as outlined in Proverbs 17:14: “ Starting a quarrel is like breaching a dam; so drop the matter before a dispute breaks out. ” (New International Version). As reflected in the portion of scripture, quarrels eventually cause trouble but can be resolved beforehand. In most cases, disputes are like forest fires that are easy to stump out when they begin but keep getting harder to extinguish as they grow. Many disputes between healthcare professionals can be easily and substantively solved with a simple negotiation if they are addressed in good time (Sohn & Bal, 2012). The best part about negotiations it that they do not involve third parties and can if handled correctly end, the dispute at minimal cost to the hospital. Care must, however, be taken since mishandled negotiations can backfire if the dispute ends up in court (Juškys & Ulbaitė, 2012).

Mediation 

Mediation can be considered as the next step from negotiation and entails the use of a third party to aid in the negotiations. In a formal setting, the two parties to a dispute can agree on a negotiator who will act as a go-between for the two parties involved (Bowe, 2014). Mediation is also a biblical concept with Jesus taking the semblance of a mediator between God and humanity as per Hebrews 12:24: .…to Jesus the mediator of a new covenant, and to the sprinkled blood that speaks a better word than the blood of Abel ”: (New International Version). It is important to note that in a mediation, the mediator does not make substantive decisions about the dispute but only facilitates communication between the parties involved so as to enable to an amicable resolution of the dispute (Bowe, 2014). As opposed to a negotiation, mediation may have the additional costs of the mediator. However, the parties will still avoid most of the vagaries that come with litigation (Juškys & Ulbaitė, 2012). The parties can also agree to keep the negotiations and the conclusion thereof private, an option that is mainly not available in litigation.

Arbitration 

Arbitration can be considered as the next level of ADR after negotiations and can be said to happen when parties agree on an individual who will settle the dispute on their behalf. In such a case, the parties will select a private judge known as an arbitrator who will hear the argument of both parties and also consider available evidence (Bowe, 2014). From a biblical perspective, Job longed for an arbitrator who would determinate the case between him and God in Job 9:33: “ There is no arbiter between us, who might lay his hand on us both ” (English Standard Version). Arbitrations mostly happen in an informal setting hence exponentially reducing the costs associated with trials including attorney fees. Further, arbitrations also save time as time-consuming formal processes such as depositions and cross-examinations (Juškys & Ulbaitė, 2012). Parties that have formally agreed on negotiation are also bound by the decision of the arbitrator and breaching it would amount in illegality. Further, the hospital will protect its reputation as the discussions and decision of the arbitrator can remain confidential (Sohn & Bal, 2012).

Collaborative Law 

Finally, there is the more formal alternative dubbed collaborative law, a creation of modern legal practice. Legal cases, even in the litigation process involve a lot of communication and a series of minute agreements. In the process, the parties would even realize that the dispute may not have been as complicated as they initially assumed (Bowe, 2014). Eventually, a concept was established for agreeing to exchange correspondences and ideas about solving the dispute without having litigation as an option. In formal cases, a collaborative law agreement is signed that binds parties to formally negotiate without their respective attorneys. As standard procedure, if the parties fail to agree and have to head to court, the attorneys who represented them in the collaborative law process cannot represent them in court. Collaborative laws enable ease of solving disputes and lower costs (Bowe, 2014). Further, in the case the matter is settled, confidentiality as the only parties involved are the attorneys of the respective parties.

Recommendations 

The Hospital and its employee should get more involved in the developing of ADR strategies. Available research shows that hospitals are not taking proper advantage of the ADR processes (Hoecker, 2007).

The hospital should prioritize ADR as and when disputes arise and as early in the process as possible to prevent the disputes from festering.

Simple and straightforward disputes should be negotiated on and resolved amicably. In some cases, an apology alone can resolve a dispute (Sohn & Bal, 2012).

Mediation should be the next step to be considered for resolving simple disputes. Parties can agree on the mediator to ensure good faith.

Complicated cases like those that carry massive legal ramifications must not be handled casually as details gleaned during ADR can be abused during litigation.

Arbitration and collaborative law should be the more viable options for the larger, more complicated cases.

The Hospital’s legal department should be involved in determining which cases are negotiated on casually and which ones demand a more formal approach.

Conclusion 

It is clearly evident from the research and analysis above that alternative dispute resolution is an invaluable tool for solving disputes in a hospital setting. ADR is easier, cheaper and consumes less time than litigation. Further, the moment a case is filed in court, it becomes public record, hence creating a reputational liability for the hospital. It is also evident that a hospital can be ruined by a court case even when nothing wrong or unethical has been done. Further, due to the nature of modern healthcare, professionalss have developed grey areas and professional dilemmas that have augmented propensity for dispute. To resolve the same, hospitals should take advantage of ADR to solve disputes between them and patients. Among the available options are negotiation, mediation, and arbitration all of which have a foundation in biblical principles and the more modern option for collaborative law. Investing in ADR will have positive returns for any hospitals.

References

Amirthalingam, K. (2017). Medical Dispute Resolution, Patient Safety and the Doctor-Patient Relationship.  Singapore medical journal ,  58 (12), 681

Bowe, G. (2014). Skills and Values: Alternative Dispute Resolution: Negotiation, Mediation, Collaborative Law, and Arbitration.  Arbitration Law Review ,  6 (1), 467-485.

Hoecker, J. L. (2007). Guess Who Is Not Coming to Dinner: Where Are the Physicians at the Healthcare Mediation Table.  Hamline J. Pub. L. & Pol'y ,  29 , 249.

Juškys, A., & Ulbaitė, N. (2012). Alternative Dispute Resolution for Consumer Disputes in the European Union: Current Issues and Future Opportunities.  Issues of Business & Law ,  4 

Ong, C. (2013). Medical mediation: Bringing Everyone to the Table.  Bulletin of the American College of Surgeons ,  98 (3), 17-20

Sohn, D. H., & Bal, B. S. (2012). Medical Malpractice Reform: The Role of Alternative Dispute Resolution.  Clinical Orthopaedics and Related Research ,  470 (5), 1370-1378.