November 22, 2013

Bioethics, Healthcare Policy, & Alternative Dispute Resolution in the Age of Obamacare

By Art Hinshaw

On November 18, 2013, the Cardozo Journal of Conflict Resolution hosted its fall 2013 symposium, entitled “Bioethics, Healthcare Policy, & Alternative Dispute Resolution in the Age of Obamacare.”  Friend of Indisputably Lela Love was kind enough to send along this synopsis of the event.

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Tell us please, what treatment in an emergency is administered by ear?”….  I met his gaze and I did not blink. “Words of comfort,” I said to my father.”  (from Cutting for Stone by Abraham Verghese)

This idea of “words of comfort” was echoed throughout the day at Cardozo’s conference–the need for a kinder and more relational world, particularly as healthcare intervenes in death, dying, and other traumatic life crises.

Scholars and practitioners in attendance included:  Edward Bergman, Nancy Berlinger, Arthur Caplan, Geoff Drucker, Nancy Dubler, Autumn Fiester, Debra Gerardi, Mindy Hatton, Michael Kosnitzky, Carol Liebman, Joe Miller, Thaddeus Pope, Charity Scott, Michelle Skipper, and Ellen Waldman.  Speakers enjoyed a full house in Cardozo’s Moot Court for the panels and keynotes and a lively exchange at lunch time.  Shawna Benston, the Editor-in-Chief of the Journal of Conflict Resolution, was the mastermind
of the event and kept the program moving along at a brisk pace.

What were my personal take-aways from the conference?

* That medical technology and health care, so advanced in many ways, must better learn to serve patient self-determination and autonomy.

* That dispute system design and imparting communication and interpersonal skills to care-providers is high on the agenda in terms of building a system with shared decision-making and collaborative care that truly serves patients and families as they confront
personal health care crises.

* That better communication between patients and physicians, as well as others in the health care system (nurses, technicians and hospital personnel), is a cornerstone of good care.

Many doctors and nurses (picture here the famous Doctor House) are good technicians but not skilled in communication or expressing empathy or relation.  Medical personnel need to be capable of leading conversations about imminent death, for example, and they currently are not.  The next era of education and dispute system design must address that deficit.

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Comments

  • Tim Sweeney says:

    I believe that a major concern with all of the health care changes that are ongoing as a result of Obamacare is the personal relationships that many patients want with their health care providers. Many people have already had to change doctors and health care providers as a result of the change. In addition, with the pool of insured people growing, and the number of doctors and other health care personnel seemingly remaining stagnant, there is some concern that patients may become mere statistics to doctors, rather than being clients and patients. Using ADR concepts and methods is important to maintain the personal relationships between doctors and patients. While there may not be a place for mediation as seen in the legal world, educating doctors in being able to help them understand their clients positions, and other mediation concepts can go a long way in helping maintain strong doctor-patient relationships. Thus, I think it is good that these things are being discussed and implemented in the hectic climate of the health care world today.

  • Michael Beckman says:

    When I think of negotiation/mediation/arbitration, I think of it in terms of solving some sort of a problem where costs are involved. Thus, when I think of imputing ADR strategies onto dealing with healthcare providers (hospitals, clinics, etc.) I think of it in terms having a problem, i.e. an illness or injury, and the associated costs of treating that illness or injury, and not necessarily in using these strategies to deal with imminent death issues or patient-doctor relationships. I’m not an expert on either of these topics, however, it seems that one of the inherent problems with healthcare costs is the inability of the patient to be in a good bargaining position with the providers, and thus having a pretty weak hand in reducing the price that he pays for the services he gets. It seems that normal market dynamics go by the way side when an individual needs treatment, and he needs it now. Thus, when I go to the emergency room of my local hospital, the sole emergency room in my town, I really have no bargaining power to say, “hey, wait a minute, that’s $800 for three stitches and another $200 for an ace bandage!” Moreover, the lack of bargaining power is only increasing as larger healthcare providers buy up smaller ones, and seemingly place patients in scenarios where there is one or two providers within a reasonable distance from their home, and those one or two providers have a near monopoly on care and its associated costs. This is where private insurers should step in and use their strength to demand lower costs, but do they? Or do these private insurers just pass on these costs to others in the form of higher premiums and accept the status quo of costs? With regard to Medicare/Medicaid and the government’s ability to bargain with providers, it would seem that the government would be in quite a strong bargaining position compared to the providers, and which will only get stronger with the increased number enrolled in both of these programs. This is where ADR could and should be used. The government as well as private insurers, should take it on themselves and use ADR strategies to demand lower/fair prices for the care their clients are provided, and streamline this to reflect their respective local markets. If private insurers and the government refuse to pay for overpriced care, this would then force the providers to stop paying for overpriced medications, ace bandages, stitches, and every other thing that has an artificially inflated price. I’m not sure how much Obamacare tackles this issue, but if it doesn’t, it should.

  • Missy Gress says:

    Just like Client-Based Representation is being implemented in a law school curriculum, physicians should be taught Patient-Based Treatment. Also, using ADR methods and concepts will not only improve the relationship between physicians and patients but also between physicians, colleagues and administrators. It is hard being a physician now with the law dictating how they should treat a patient and with business administrators who are not doctors telling them what to do. Most physicians are competitive in their nature and take an adversarial approach to a conflict. Physicians are people first and emotional intelligence will go a long way in communication and deciding the appropriate treatment plan.

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