Class
9
Disaffiliation
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Huge financial stakes
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Competing implications
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Three types of disaffiliation
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Competency based
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Business based
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Exclusion of a class, such as chiropractors, psychologists or home health
providers.
Competency Based Disaffiliation
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Whenever the professional privileges of an individual or a group are
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suspended
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reduced
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limited, or
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terminated
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disaffiliation has occurred.
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The process is engaged as a result of peer reviews
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Disaffiliation is always retaliated against by law suits when doctors are
involved.
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antitrust
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contract
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business torts (e.g. breach of fiduciary duty, DTPA)
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libel/slander (defamation)
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Common Issues
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High stakes
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large amounts of dollars (a professional making $500,000.00 to $1.2 million
a year will have a significant interruption of income if they cannot bill
patients for six months).
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HCQIA (Health Care Quality Improvement Act) reporting and penalties for
non-reporting
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Reduces physician incentives to settle
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Makes hospitals extremely wary of any non-reporting.
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High emotions, the clash of titanic egos (disaffiliation is a direct attack
on the ego).
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Get worse over time.
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parties get entrenched and engage in denial.
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ombuds may defuse early.
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neutral evaluation may reduce emotions, provide reality checks.
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Often involve personal vendettas.
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"nice guys" often get away with far more incompetence.
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Often it is a combination of incompetence and hostile personality that results
in something being done.
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Conflict Resolution Mechanisms to Apply
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Ombuds to intervene in pre- peer review situations (the trigger for this
treatment is a constant, above normal, stream of peer review issues or peer
review issues that are starting to fester or brew into a significant conflict).
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ADR as a condition of litigation after a peer review.
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Need for due process to preserve immunity.
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CRMs may simplify trial. (Applications covered more at length later
in outline).
Business Based Disaffiliations
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No HCQIA limits or issues
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Law suits common in spite of "at will" provisions
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Mediation is often a weak solution, disaffiliation often occurs because the
parties don't have any room left.
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Non-binding arbitration can be a wake-up call and a reality check.
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Make CRMs optional, not mandatory, to allow freedom to adjust to the individual
situation
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Most disaffiliation suits result in a summary judgment.
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CRMS can just be a waste of time and effort
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May want to require ADR/CRM when and if a Motion for Summary Judgment fails.
Class Exclusions
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Have become a non-issue as the legal remedies for class exclusions have been
such spectacular failures ...
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However, exclusions usually have the following policy/reality issues:
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The service is extremely valuable, and in the right situation extremely cost
effective (consider home health care).
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The service often has competing providers
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There is an infinite oversupply of providers who will overtreat if allowed.
(Look at what happened to home health care. Also consider class
room examples and discussions of mental health care and chiropractic. Cf
Consumer Reports and Lancet on chiropractic care. Consider therapeutic
touch).
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These are the "whys" of exclusion clauses.
Remember: CRM = Conflict Resolution Mechanism
The Ombuds: An Ambassador At Large
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Retired senior physicians and administrators fill this role well.
(As attitudes adjust, senior nursing professionals also have excellent
skills and abilities for these positions. Only barrier is bias in some
institutions).
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Independent.
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With authority to request and obtain access to information.
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Persons with a clear understanding of the duty of confidentiality.
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Necessary contract clauses to preserve confidentiality.
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They intervene before issues move to a peer review
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Especially needed when peer reviews are "too common"
Basic Peer Review of Institutions
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Uses an outside, disinterested sole neutral.
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The neutral is provided with information (the basis for the disaffiliation
and any rebuttals) to review.
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Has the right to request more information.
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Sets up a short hearing to receive a final round of information.
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Issues non-binding findings of fact.
Expanded Peer Review for Institutions.
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Use 3 arbitrators instead of one.
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Note that both expanded and basic can be private or open, non-binding,
semi-binding or binding (semi-binding is when the parties are agreed, or
the contract provides, that the findings of fact shall be provided to the
jury as evidence).
Reality Checks for Disaffiliated Physicians
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3 member panel for weight and "gravitas"
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Triggered by the filing of suit (to avoid becoming "just one more" automatic
layer)
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Streamlined to reduce cost, invoked early on, before discovery or other expenses.
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Uses complete outsiders to provide a neutral reality check for all involved.
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The panel reviews paper trail, accepts supplementation, has a hearing and
issues findings
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Can be private or open, non-binding, semi-binding or binding (semi-binding
is when the parties are agreed, or the contract provides, that the findings
of fact shall be provided to the jury as evidence).
General Business Disputes: these are classic ADR. Finally, a
place where Health Care ADR is the same as "normal" ADR.
Workforce Disputes (consider, these were the core of the initial case study).
Especially for resolving EEOC and Labor conflicts. Can cover:
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Contractual issues
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Discrimination
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Sexual harassment
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Unfair Labor Practices claims
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ADA (Americans with Disabilities Act) Claims
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Work assignment conflicts (between professions/disciplines)
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Intra-organizational conflicts.
Processes:
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Internal transformative mediation works best here for many conflicts.
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Internal quasi-arbitration is also important (especially when an organization
does not have a formal chain of command or decision making procedure, you
can help them formulate one).
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Collective bargaining mechanisms
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External mediation and evaluation provisions are also used.
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Arbitration is building as a method to cut costs when suit would otherwise
be filed.
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REMEMBER: when you can, look to solve issues, not just end the current
conflict, but if conflict can not be resolved, seek to end it cheaply and
quickly.
Patient complaints:
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If hurt feelings, rudeness issues, an ombuds office can often help.
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If malpractice issues, arbitration often reduces cost (Kaiser).
Review Framing Assignment
Copyright 2000 by Stephen R. Marsh
http://adrr.com/smarsh/