Conflict Resolution in the Clinical Setting: A Story beyond Bioethics Mediation

In many scenarios requesting a consult, although some options may be clearly ruled out, the contest appears to be between options that cannot be decisively defended or defeated on rational or empirical grounds. One side, e.g., says the tiniest chance for survival must be pursued at all costs, while the other insists that some qualities of life are worse than death. See Morreim E. H. , “Moral Distress and Prospects for Closure,” American Journal of Bioethics 15, no. 1 (2015): 38–40. Engelhardt described such situations long ago: No single viewpoint can definitively command the moral high ground, and so our challenge is to resolve the conflict procedurally or, as he put it, without resort to force. Engelhardt T. , The Foundations of Bioethics , 2nd ed. (New York: Oxford University Press, 1996). See also Bergman E. , “Surmounting Elusive Barriers: The Case for Bioethics Mediation,” Journal of Clinical Ethics 24, no. 1 (2013): 11–24; Fiester A. , “Ill-Placed Democracy: Ethics Consultations and the Moral Status of Voting,” Journal of Clinical Ethics 22, no. 4 (2011): 363–72.

Morreim E. H. , “Profoundly Diminished Life: The Casualties of Coercion,” Hastings Center Report 42, no. 1 (1994): 33–42.

Dubler N. Liebman C. , Bioethics Mediation: A Guide to Shaping Shared Solutions (Nashville: Vanderbilt University Press, 2011).

Id.; Dubler N. , “A ‘Principled Resolution’: The Fulcrum for Bioethics Mediation,” Law and Contemporary Problems 74, no. 3 (2011): 177–200; see Bergman, supra note 1; Fiester A. , “Ill-Placed Democracy: Ethics Consultations and the Moral Status of Voting,” Journal of Clinical Ethics 22, no. 4 (2011): 363–372; Fiester A. , “The Failure of the Consult Model: Why ‘Mediation’ Should Replace ‘Consultation,”’ American Journal of Bioethics 7, no. 2 (2007): 31–32; Howe E. , “How Mediation (and Other) Approaches May Improve Ethics Consultants' Outcomes,” Journal of Clinical Ethics 22, no. 4 (2011): 299–309.

A. J. Tarzian and ASBH Core Competencies Update Task Force, “Health Care Ethics Consultation: An Update on Core Competencies and Emerging Standards from the American Society for Bioethics and Humanities' Core Competencies Update Task Force,” AJOB 13, no. 2 (2013): 3–13, at 5.

Fisher R. Ury W. , Getting to Yes: Negotiating Agreement Without Giving In, 2nd Ed. (New York: Penguin Books, 1991).

Priming refers to a phenomenon in which introducing one stimulus – perhaps a word of suggestion – can influence later responses. In mediation, the mediator might use certain words or concepts early, in hopes that the people at the table will be more receptive, later, to options involving those concepts. Here, the idea that it would “take a village” to care for Benny helped the families to adopt the idea that they should collaborate with each other in the discharge planning process and in caring for Benny long term. See Gladwell M. , Blink (New York: Back Bay Books, 2007): At 53–58, 76.

Managing expectations involves preparing people for what to expect, so that the described event(s) will be familiar when they come to pass. Unpleasant or unexpected developments can quickly derail progress, often by disrupting parties' trust.

When people are assured that their concerns, feelings, activities are shared by many other people – that they are normal – the associated level of emotionality can be diffused.

Several months later, a brief follow up with Dr. Goode indicated that the parents' arrangement continued to work reasonably well, and that Benny was able to exhibit social smiling – encouraging and gratifying for both his parents.

See Morreim , supra note 1.

See Morreim , supra note 2.

Bosslet G. Pope T. , “An Official ATS/AACN/ACCP/ESICM/SCCM Policy Statement: Responding to Requests for Potentially Inappropriate Treatments in Intensive Care Units,” American Journal of Respiratory and Critical Care Medicine 191, no. 11 (2015): 1318–1330, at 1320, 1322.

Ahmed N. Devitt K. S. Keshet I. , “A Systematic Review of the Effects of Resident Duty Hour Restrictions in Surgery: Impact on Resident Wellness, Training, and Patient Outcomes,” Annals of Surgery 259, no. 6 (2014): 1041–1053.

Desai S. V. Feldman L. Brown L. , “Effect of the 2011 vs 2003 Duty Hour Regulation-Compliant Models on Sleep Duration, Trainee Education, and Continuity of Patient Care among Internal Medicine House Staff: A Randomized Trial,” JAMA Internal Medicine 173, no. 8 (2013): 649–655; see also “Reducing Work Hours for Medical Interns Increases Patient ‘Handoff’ Risks,” Hopkins Medicine, March 25, 2013, available at <http://www.hopkinsmedicine.org/news/media/releases/reducing_work_hours_for_medical_interns_increases_patient_handoff_risks> (last visited November 18, 2015).

The Joint Commission (TJC), formerly the Joint Commission on Accreditation of Healthcare Organizations, is the leading organization for accreditation of health care organizations such as hospitals. Many states, for instance require Joint Commission accreditation as a condition for Medicaid reimbursement.

ECRI, Healthcare Risk Control: Supplement A , September 2009, at 1, available at <http://www.ecri.org/PatientSafety/RiskQual16.pdf>. The ERCI recommendations include: “Assess the quality of communications in the organization to identify factors contributing to patient safety problems,” “[p]rovide education and training in effective communication,” and “[i]mplement strategies to improve communication and teamwork….” Id.

For an excellent discussion of Joint Commission standards and their respective elements of performance, see Scott C. Gerardi D. , “A Strategic Approach for Managing Conflict in Hospitals: Responding to the Joint Commission Leadership Standard; Part 1,” Joint Commission Journal on Quality & Patient Safety 37, no. 2 (2011): 59–69; A Strategic Approach for Managing Conflict in Hospitals: Responding to the Joint Commission Leadership Standard; Part II, Joint Commission Journal on Quality & Patient Safety 37, no. 2 (2011): 71–80. See also Reister Conard J. Franklin J. F. , “Addressing the Art of Conflict Management in Healthcare Systems,” Dispute Resolution Magazine 16, no. 3 (2010): 15–18.

The Joint Commission described in-house conflict resolution in the Elements of Performance for Standard LD.02.04.01 “4. The conflict management process includes the following:

• Meeting with the involved parties as early as possible to identify the conflict

• Gathering information regarding the conflict

• Working with the parties to manage and, when possible, resolve the conflict.”

Elements of Performance for LD.02.04.01, Element #4. Element #3, initially in the 5-item set but later removed said: “Individuals who help the hospital implement the process are skilled in conflict management. This accreditation standard became effective on January 1, 2009. Note: These individuals may be from either inside or outside the hospital.” O'Hare M. G. , “A Case Study for Effective Conflict Management in the Health Care Workplace: Lessons from Babb v. Centre Community Hospital,” AHLA Labor & Employment Newsletter (December 2013): 5–7

Governance Institute, Leadership in Healthcare Organizations: A Guide to Joint Commission Leadership (Governance Institute White Paper, Winter 2009): At 17; available at <http://www.jointcommission.org/assets/1/18/WP_leadership_standards.pdf> (last visited November 18, 2015). The Governance Institute's White Paper provided the standards and underlying rationale that were adopted as Joint Commission standards on January 1, 2009.

Krautscheid L. , “Microethical Decision Making among Baccalaureate Nursing Students: A Qualitative Investigation,” Journal of Nursing Education 53, no. 3, Suppl. (2014): S19–S25. See also Korn P. , “Nursing Professor's Studies Suggest Ethics Problem,” KOIN TV, July 31, 2014, available at <http://koin.com/2014/07/31/nursing-professors-studies-suggests-ethics-problem/> (last visited November 18, 2015).

One noteworthy example of informal conflict resolution for employees comes from M.D. Anderson Cancer Center's Ombuds Office. This particular ombuds service focuses on conflicts among employees, providing a nonthreatening avenue for addressing issues that might otherwise become toxic and destructive. See, e.g., MD Anderson Cancer Center, “About Us: Resolution Pathways,” available at <http://www.mdanderson.org/about-us/for-employees/employee-resources/ombuds-office/resolution-pathways/ombuds-office-resolution-pathways.html> and MD Anderson Cancer Center, “About Us: Ombuds,” available at <http://www.mdanderson.org/about-us/for-employees/employee-resources/ombuds-office/index.html> (both last visited November 18, 2015).

For a detailed story of such conflicts and the processes by which they might be addressed, see E. H. “Morreim In-House Conflict Resolution Processes: Health Lawyers as Problem-Solvers,” The Health Lawyer 25, no. 3 (2014): 10–14; Morreim E. H. , “Conflict Resolution in Health Care,” Connections 18, no. 1 (2014): 28–32.

American Health Lawyers Association, Conflict Management Toolkit (2010), available at <https://www.healthlawyers.org/dr/SiteAssets/Lists/drsaccordion/EditForm/Conf%20mgmt%20toolkit.pdf> (last visited December 8, 2015).

See Scott Gerardi , supra note 20; see also Conard Reister Franklin , supra note 20.

“ADR” stands for “alternative dispute resolution.”

Particularly in California, many Kaiser Permanente medical centers provide an ombudsman/mediator service whose focus is to work with patients, families, providers and staff to resolve patient/provider disputes quickly and, in the process, improve patient safety and reduce the costs of adverse events. See, e.g., <https://www.linkedin.com/jobs2/view/9192503> (last visited November 19, 2015).

See also, e.g., Oregon Laws 2013 Chapter 5, amending ORS 30.278, 31.250 and 743.056, and Administrative Rules 325-035-0001 to 325-035-0050; Budnick N. , “New Oregon Program Allows Mediation for Medical Errors Instead of Suing,” OregonLive, July 1, 2014; available at <http://www.oregonlive.com/health/index.ssf/2014/07/new_oregon_medical_program_all.html> (last visited November 19, 2015).

And see Mass. Gen. Laws ch. 231 § 60L (2012), creating a 6-month “cooling-off” period for potential litigants of a medical malpractice case. The potential claimant must tell providers specifically what they believe happened, why it appears to violate the standard of care, what should have happened instead, and how the deviation from care caused the injury. The provider must promptly respond with comparably rich information. Such detailed disclosures permit both sides to undertake at an early point the kind of realistic analysis that, in more traditional settings, can drag discovery out for years. The legislation also strengthened protections for apologies and led to the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI) (<http://www.macrmi.info/#sthash.bLRr481Q.dpbs> (last visited November 19, 2015)).

Kraman S. S. Hamm G. , “Risk Management: Extreme Honesty May Be the Best Policy,” Annals of Internal Medicine 131, no. 2 (1999): 963–967; Hetzler D. C. , “Superordinate Claims Management: Resolution Focus from Day One,” Georgia State University Law Review 21, no. 4 (2005): 891–909; Kachalia A. Kaufman S. R. Boothman R. , “Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program,” Annals of Internal Medicine 153, no. 4 (2010): 213–222, at 219; Boothman R. C. Blackwell A. C. Campbel D. A. , “A Better Approach to Medical Malpractice Claims? The University of Michigan Experience,” Journal of Health & Life Sciences Law 2, no. 2 (2009): 125–159; Jenkins R. C. Smillov A. E. Goodwin M. A. , “Mandatory Presuit Mediation: 5-Year Results of a Medical Malpractice Resolution Program,” Journal of Healthcare Risk Management 33, no. 4 (2014): 15–22; Boothman R. C. Imhoff S. J. Campbell D. A. , “Nurturing a Culture of Patient Safety and Achieving Lower Malpractice Risk through Disclosure: Lessons Learned and Future Directions,” Frontiers of Health Services Management 28, no. 3 (2012): 13–28; Langel S. , “Averting Medical Malpractice Lawsuits: Effective Medicine – or Inadequate Cure?” Health Affairs 29, no. 9 (2010): 1565–1568; Gallagher T. H. Studdert D. Levinson W. , “Disclosing Harmful Medical Errors to Patients,” New England Journal of Medicine 356, no. 26 (2007): 2713–2719; Bell S. K. Smulowitz P. B. Woodward A. C. , “Disclosure, Apology, and Offer Programs: Stakeholders' Views of Barriers to and Strategies for Broad Implementation,” The Milbank Quarterly 90, no. 4 (2012): 682–705; UPMC, Intermediation Program, available at <http://www.upmc.com/patients-visitors/Documents/intermediation-program-upmc.pdf> (last visited November 19, 2015); Drexel University College of Medicine's Dispute Mediation Program, available at <http://www.drexelmedicine.org/mediation/#sthash.dsw4GufT.dpuf> (last visited November 19, 2015).

Charles S. , “Mediating False Claims Act Cases: Meeting the Challenges of a Unique Statute from the United States Law Week,” U.S.L.W. 80 (November 20, 2012): At 721, reprinted in Bloomberg BNA, available at <http://www.jamsadr.com/files/Uploads/Documents/Articles/Stevens-False-Claims-Act-2012-11-20.pdf> (last visited November 19, 2015).

By analogy, it has been proposed that ethics committees could be the home-base for other kinds of “communication consult services,” such as coaching physicians and others before they disclose errors and adverse outcomes to patients and families. See Truog R. Browning D. Johnson J. Gallagher T. , Talking with Patients and Families about Error (Baltimore: Johns Hopkins University Press, 2011): At 61. See also Bosslet and Pope et al., supra note 15.

See, e.g., Dubler Liebman , supra note 3; Dubler, supra note 4.

See Bergman , supra note 1; Fiester A. , “Ill-Placed Democracy: Ethics Consultations and the Moral Status of Voting,” Journal of Clinical Ethics 22, no. 4 (2011): 363–372; Fiester A. , “The Failure of the Consult Model: Why ‘Mediation’ Should Replace ‘Consultation,”’ American Journal of Bioethics 7, no. 2 (2007): 31–32; Howe E. , “How Mediation (and Other) Approaches May Improve Ethics Consultants' Outcomes,” Journal of Clinical Ethics 22, no. 4 (2011): 299–309.

Even with bona fide agreement, changing circumstances or new information can still render an agreement nonfunctional.

See Morreim , supra note 24.

Bioethics mediation, as traditionally framed, generally concerns patient care decisions and focuses especially on life-and death situations: “[a]ll participants in a bioethics mediation have a common interest in the well-being of the patient.” See Dubler , supra note 4, at 187. “A presumptive common concern for the patient's best interests distinguishes bioethics mediation from conflicts in which opposing parties have disparate and irreconcilable interests,” says Bergman , in supra note 1.

See Dubler , supra note 4, at 178.

Id., at 187.

See Dubler , supra note 4, at 181, #5.

Dubler N. , “Commentary on Bergman: ‘Yes… But’,” Journal of Clinical Ethics 24, no. 1 (2013): 25–31, at 28.

See Dubler , supra note 4, at 178.

Id., at 187.

See Morreim , supra note 1.

See Dubler , supra note 4, at 181, #5.

If someone's values call for a solution that is ethically so dubious as to be illegal, the mediator can invite the appropriate voice to introduce that legal reality, as discussed above.

See Dubler , supra note 4, at 187.

Admittedly, in some instances patients or surrogates will withdraw from an agreement not so much to express honest evolution of thought, as to manipulate providers. This is not the forum for discussing such cases; suffice it to say the mediator needs to inquire carefully and avoid being coopted where subterfuge is afoot. If the mediator has built a reasonable level of trust, s/he should usually be able to discern reasonably well which is which.

As Lee Jay Berman observes, “I define the mediator's proposal as the exact point in time where the mediator ran out of skills.” See Mehta S. G. , “The Mediator's Proposal Round-table: The Good, the Bad, The Ugly.” Mediation Matters (blog), January 19, 2010, available at <http://stevemehta.wordpress.com/2010/01/19/the-mediators-proposal-roundtable-the-good-the-bad-the-ugly/> (last visited November 19, 2015).

“Adoption of bioethics mediation as a primary clinical dispute resolution process, available at the request of patients' families, surrogates, and caregivers, would dramatically enhance the manner in which hospitals address conflict. Reliance on bioethics consultation by those who are expert in bioethics principles, for imposition of juridically based decisions on individuals in crisis, premised on questionably superior access to moral judgments, has been nothing short of ‘scandalous’ and an embarrassment to the healthcare system.78 Patients and their families, in particular, are entitled to a nonthreatening, inclusive forum in which they can be heard and respected for their relevant competencies.” Bergman E. , “Surmounting Elusive Barriers: The Case for Bioethics Mediation,” Journal of Clinical Ethics 24, no. 1 (2013): 11–24, at 21.

See, e.g., M.D. Anderson Cancer Center Ombuds Office, supra note 23; National Institutes of Health Office of the Ombudsman, available at <http://ombudsman.nih.gov> (last visited November 19, 2015); Akron General Hospital ombuds service, <http://ombuds-blog.blogspot.com/2010/05/five-long-days-with-hospital-ombuds.html> (last visited November 19, 2015); University of California Davis, <http://ombuds.ucdavis.edu> (last visited November 19, 2015); University of Pittsburgh Medical Center, Intermediation Program, available at <http://www.upmc.com/patients-visitors/Documents/intermediation-program-upmc.pdf> (last visited November 19, 2015); Drexel University College of Medicine's Dispute Mediation Program, available at <http://www.drexelmedicine.org/mediation/#sthash.dsw4GufT.dpuf> (last visited November 19, 2015).

As a “Rule-31 listed mediator” in the state of Tennessee I have the opportunity to provide mediations on a regular basis for local courts, and have particularly focused on civil cases in which family have sued family over real estate, unpaid debt, return of property and the like. The emotional intensity of these cases is often comparable to that found in healthcare, and thus provides the kinds of opportunities described.

Advanced training in healthcare mediation is offered, e.g., by the Center for Conflict Resolution in Healthcare LLC (www.healthcare-mediation.net; last visited December 8, 2015), American Health Lawyers Association (healthlawyers.org), and the Penn Department of Medical Ethics (http://medicalethics.med.upenn.edu; last visited December 8, 2015).