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Alternative Dispute Resolution


Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.

Arbitration

Imaging methods to help diagnose cardiac abnormalities are not perfect. Consequently, whether cardiac imaging studies were correctly interpreted has been an issued considered in arbitration related to unnecessary cardiac procedures. For example, a woman presented to the emergency room (ER) complaining of severe chest pain. The woman underwent a CT scan and a transesophageal electrocardiogram (TEE), an imaging procedure in which a specialized probe containing an ultrasound transducer at its tip is passed into the patient's esophagus to record image and Doppler evaluations of the structures of the heart. The results of the studies, along with her complaints of severe chest pain, led a cardiologist to suspect the woman had a life-threatening tear in her aorta.

 

Consequently, the cardiologist performed an exploratory median sternotomy, a surgical procedure to provide access to the heart and lungs in which a vertical inline incision is made along the breastbone (sternum), after which the sternum itself is divided or "cracked.” During the exploratory median sternotomy, no evidence of acute aortic process was found, meaning that the exploratory median sternotomy had been unnecessary.

 

The woman brought a medical malpractice claim against the health care providers. The claim alleged that the health care providers’ treatment of the woman fell below the standard of care when they failed to communicate findings among the various doctors, failed to undertake proper diagnostic testing through the administration of an MRI, and failed to interpret properly and accurately the CT scan and TEE.

 

The health care providers denied liability. They asserted that the exploratory median sternotomy was necessary considering the CT scan, TEE, and the woman’s physical presentation.

 

The woman’s claims were submitted to arbitration. After an arbitration hearing, the arbitrator found the health care providers acted properly. The arbitrator found that, based on the testimony of the medical witnesses, the circumstances of the woman’s seemingly acute distress did not afford the health care providers the time to perform an MRI in addition to the CT scan and TEE. Additionally, the arbitrator found that testimony established that an MRI was no more the “gold standard” than a TEE as a diagnostic tool. The arbitrator was satisfied that communications among the health care providers were satisfactory and in no way compromised the woman’s health. The health care providers’ witness was more persuasive than the woman’s with regard to the issue of whether the health care providers correctly interpreted the TEE. Specifically, the arbitrator noted that the health care providers’ witness directed the arbitrator’s attention in viewing the TEE to what appeared to be a flap, which would have suggested the likely possibility of an aortic dissection. Under the exigent circumstances, the exploratory median sternotomy reasonably appeared to be the necessary means of saving the woman’s life.

 

See: In the Matter of the Arbitration between [Redacted], Claimant, v. [Redacted], Respondents, 2008 WL 8943552 (Arbitrator Submitted Award) (not designated for publication).

 

For a comprehensive discussion of arbitration see Alternative Dispute Resolution Practice Guide §§2:1 to 22:28.

See also Arbitration of medical malpractice claims, 24 A.L.R.5th 1; Am. Jur. 2d Physicians, Surgeons, Etc. § 297, Arbitration of medical malpractice claims.

Mediation

When a pattern and practice of ordering unnecessary procedures is alleged, discovery becomes an important aspect of the litigation. For example, a whistleblower, through a federal False Claims Act action, accused heart doctors and their practice group of systematically submitting false claims to, and receiving reimbursements from, Medicare and other federal health care programs for medically unnecessary cardiac catheterizations and cardiac and vascular surgical procedures, including Percutaneous Coronary Interventions (PCI), (also known as angioplasty with stent) a non-surgical procedure that uses a catheter (a thin flexible tube) to place a small structure called a stent to open up blood vessels in the heart that have been narrowed by plaque buildup.

 

In furtherance of this scheme, the practice group allegedly established a kick-back scheme to the hospital where most of the procedures were performed. Additionally, the practice group allegedly allowed non-cardiologist physicians to directly schedule patients for catheterization procedures without consulting a cardiologist and implemented a policy of serving as an “admitting physician” for referring physicians who did not have admitting privileges at the hospital. The heart doctors also allegedly intentionally overstated and misrepresented the severity of stenosis on angiogram films in order to increase surgical intervention by deliberately employing a medically unacceptable standard for blockages and by intentionally refusing to utilize best-available technology to confirm diagnosis and rule out the need for surgery.

 

The heart doctors and their practice group filed a motion for protective order that would limit discovery to events that occurred between the date of the limitations period cut-off identified in the trial court’s prior rulings and the date when the whistleblower left the practice group’s employ. The trial court denied the motion without prejudice. The trial court held that the time frame of the allegations was up through the present.

 

The trial court ordered the parties to participate in an early mediation. In order to prepare for the mediation, the parties agreed to a temporary discovery plan, pursuant to which the heart doctors and their practice group would immediately produce information relating to events that occurred up to three years after the date of the limitations period cut-off identified in the trial court’s prior rulings. Additionally, the parties would refrain from filing discovery motions until after the scheduled mediation.

 

The mediation was unsuccessful. Following the mediation, the government requested that the heart doctors and their practice group agree to voluntarily provide complete responses to the pending discovery requests, including information relating to the period after three years after the date of the limitations period cut-off identified in the trial court’s prior rulings. The heart doctors and their practice group refused. The government filed a motion to compel.

 

The trial court granted the government’s motion to compel. The trial court held that the temporal scope of discovery should not be limited on grounds of relevance to the period between the date of the limitations period cut-off identified in the trial court’s prior rulings and the date when the whistleblower left the practice group’s employ. Additionally, the trial court found that the burdens of answering the discovery were not so burdensome and disproportionate so as to preclude discovery beyond the date agreed upon in the pre-mediation discovery plan in its entirety. The trial court recommended a specific, sequenced discovery approach using the government’s discovery requests as a starting point.

 

See: U.S. ex rel. Emanuele v. Medicor Associates, Inc., 2014 WL 3747689 (W.D.Pa., 2014), report and recommendation adopted, 2014 WL 3747666 (W.D.Pa., July 29, 2014) (not designated for publication).

 

For a comprehensive discussion of mediation see Alternative Dispute Resolution Practice Guide §§23:1 to 35:7.

 

 

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