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ADR in Healthcare Malpractice
Quadasia Dukes
The Liberty University
November 14, 2021
ADR in Healthcare Malpractice
Commonly referred to as the ADR, alternative dispute resolution is simply the technique mainly used to resolve healthcare issues without legal measures. The fact that costs related to healthcare malpractices are becoming expensive, most people are shifting to other strategies, which are more affordable. Examples of such tactics include arbitration and mediation, early apology, and biblical considerations. However, there are different dispute resolution strategies, which healthcare practitioners use while addressing specific dispute types, including their need for personalized processes based on unique situations. As a nurse, I have been a victim of such circumstances where we have been forced to settle some healthcare dispute through arbitration. With that in mind, this annotated research analysis will reflect on the ADR in healthcare.
Benesch, K. (2011). WHY ADR AND NOT LITIGATION FOR HEALTHCARE DISPUTES? Dispute Resolution Journal, 66(3), 52-59. Retrieved from https://www.proquest.com/scholarly-journals/why-adr-not-litigation-healthcare- disputes/docview/905246256/se-2?accountid=45049
Mediation and arbitration are becoming the most preferred ADR forum that healthcare practitioners have used in recent times. Through the research, Benesch (2011) highlights some factors, forcing people to incorporate ADR as their primary platform for resolving some of the complex healthcare issues. Common elements include flexibility of arbitration, ability to choose arbitrators experts, limited recovery and fewer costs. The study further claims that arbitration and mediation mostly succeed where a neutral party can help other parties attain their objectives.
Gerlach, J., Aboudunde, B., Sollosy, M., & Coustasse, A. (2019). Rethinking the Obvious. The Health Care Manager., 38(2), 109-115. Accessed June 5, 2021 from https://doi.org/10.1097/HCM.0000000000000260.
In this article, Gerlach et al. (2019) are discussing the efficiency of incorporating medical malpractice tort reforms as a means of limiting incentives, cost controls, reducing malpractice premiums and limiting occurrences in malpractice litigation. Written by Gerlach, Aboudunde, Sollosy, & Coustasse, it remains evident that aggressive damage caps and direct reforms tend to have an extensive impact, especially in increasing physician supply and limiting malpractice premiums (Gerlach et al., 2019, p. 109). Researchers tend to assume that preventing the litigations could be by being preemptive of unnecessary blunders. This would mean that nurses and other healthcare practitioners are given bonuses and incentives to encourage them to engage in quality care within the healthcare facility.
Jenkins, R.C., Firestone, G., Aasheim, K.L. and Boelens, B.W. (2017), Mandatory Pre- Suit Mediation for Medical Malpractice: Eight-Year Results and Future Innovations. Conflict Resolution Quarterly, 35: 73-88. Accessed June 5, 2021 from https://doi.org/10.1002/crq.21194.
Jenkins et al. (2017) conducted this study review, which was done in eight mandatory years based on the pre-suit mediation that incorporates several healthcare malpractices in Florida. Written by Jenkins, Firestone, Aasheim, and Boelens, the authors evaluated some of the benefits of the medical malpractice lawsuits, including their roles in settling disputes. The research establishes that most of the issues within healthcare are usually resolved through FLPSMP. Such a technique is also critical in reducing the amount of time used while resolving an issue. This was different from the traditional medical malpractice litigation.
Kamenecka-Usova, M., & Palkova, K. (2017). Mediator’s personality in specific legal disputes: Sports related disputes and healthcare related disputes. Acta Universitatis Danubius.Juridica, 13(2) Retrieved from https://www.proquest.com/scholarly- journals/mediators-personality-specific-legal-disputes/docview/2118379853/se-2
In their research, Kamenecka-Usova, & Palkova (2017) establish that mediation remains the most suitable dispute resolution option. In most cases, it provides both parties with an opportunity to develop mutual beneficial elucidation without interferences from other parties. Apart from that, it creates confidentiality. Most healthcare practitioners prefer this resolution type. Before using it, they must ensure that the mediation process is established based on the mediator’s expertise and skills. The authors also incorporate sports and healthcare-related disputes as a strategy that demonstrates legal conflicts diversity.
Keen A, Thoele K, Fite L, Lancaster S. (2019) Competent Patient Refusal of Nursing Care: An Innovative Approach to a Complex Problem. J Wound Ostomy Continence Nurs. 2019 Sep/Oct;46(5):390-395. Accessed June 5, 2021 from https://doi: 10.1097/WON.0000000000000569. PMID: 31513125.
This article focuses on the competency aspect in case of patient’s refusal during healthcare practice. The report is also one of the two articles related to my role as a nurse and the issues I tend to experience during healthcare services. Alyson Keen, Kelli Thoele, Fite and Lancaster wrote this article to demonstrate the nurses’ rights during their practices. Typically, nurses usually experience various challenges such as the patient’s refusal to medical care. Patients’ resistance, especially during instigating care, primarily results in conflicts (Keen et al., 2019, p. 390).
Miki, J. (2016). Medical Malpractice Arbitration Agreements: The Healthcare Consumer’s Hobson’s Choice. Western State Law Review, 43(2), 225-248.
Miki’s (2016) article is the other article that demonstrates the link between nursing and the ADR aspect. Through this article, Miki (2016) provides an extensive analysis of healthcare malpractice arbitration and the agreements that bind it. Apart from that, the report highlights some of the legislative preventions, legal procedures and regulations, which are usually used to enhance patients’ safety, especially during the treatment process. According to the article, it remains evident that medical malpractice arbitration agreements remain vital during the various healthcare practices.
Murry, K. (2015). Reconciling law and morality in a secular legal system: Christian and Jewish Approaches to lawyers’ ethics. Monash University Law Review, 4(3), 696- 715.
Murray (2015) highlights the techniques used when reconciling morality and law within a secular legal system. More specifically, the research addresses some of the approaches that the Jewish and Christians use. Katie Murray wrote this article to evaluate her position as a Christian lawyer who is forced to balance between ethics, morals and Christianity within the legal system. Through the study, Murry (702) introduces the Adversarial Advocate model. This technique demands that lawyers of faith need to put aside their moral values, especially when dealing with professional issues. Through her study, Murry (702) insists that religious lawyers must always act according to faith-based values as they engage in their practices.
Posner, S . “An Army of Christian Lawyers.” The nation. 306.1 (2018): n. pag. Print. Accessed June 5, 2021 from https://web-b-ebscohost com.ezproxy.liberty.edu/ehost/detail/detail?vid=0&sid=1e4571e6-5a4e-4392-bf1b ecd5987166c9pdc-v sessmgr01&bdata=JnNpdGU9ZWhvc3QtbGl2ZSZzY29wZT1zaXRl#db=ulh&AN= 126880015
The other biblical article in this research is done by Posner (2018). The study reflects on some of the rights and privileges that various Christian professionals, including lawyers, have to maintain their beliefs’ stance during their practices. Sarah Posner wrote the article to target a Colorado bakery inclined to bake a cake for an LGBTQ community couple. Apart from that, the author also highlights a healthcare practitioner who declined to perform an abortion on a young lady. More specifically, the article reflects on how the law must consent Christians to disobeying and ignoring laws that protect specific rights while protecting or favouring themselves.
Sustek, P., & Holcapek, T. (2017). Alternative Dispute Resolution In Medical Malpractice Disputes. Varazdin: Varazdin Development and Entrepreneurship Agency (VADEA). Retrieved from https://www.proquest.com/conference-papers- proceedings/alternative-dispute-resolution-medical/docview/2071306869/se- 2?accountid=45049
In this study, Sustek & Holcapek (2017) view alternative dispute resolution as an essential category based on various strategies and techniques that allow different parties, especially healthcare, to solve their issues without necessarily involving them in judicial proceedings. Through their study, the researchers insist that tactics such as arbitration, mediation and apology tend to be rational, mainly when analyzed from an economic standpoint. There is also the perception that using the ADR technique is critical in improving client satisfaction. The only concern is the legality and suitability aspect linked to the ADR use when handling medical malpractice.
Suja, N. S. (2015, Aug 10). IPC issues suspected ADR reporting form for healthcare professionals. PharmaBiz, Retrieved from https://www.proquest.com/magazines/ipc- issues-suspected-adr-reporting-form/docview/1702641831/se-2?accountid=45049
Written by Suja Nair Shirodkar, this article seeks to empower healthcare professionals to notify IPC that is usually considered a national coordination institution specifically for the PvPI. The report insists that healthcare professionals must incorporate this aspect to save themselves from unnecessary conflicts during their practices. ADR forms are critical in terms of providing them with confidentiality needs.
Analysis
From the research, it is evident that healthcare malpractices will continue to prevail. Most people have the perception that these malpractices provide an easy means of minting money from clinical practitioners. Others assume that malpractices are critical in shaping the work of medical practitioners. Therefore, they mostly use such opportunities to damage the reputation of clinicians and healthcare practitioners. However, the introduction of alternative approaches to settling healthcare disputes has put such opportunists in disarray. ADR has provided the most effective platform where healthcare practitioners could use to end their work mysteries. As much as lawsuit possibility is always unavoidable, the affected individuals could use the ADR platform to resolve their issues. I felt that this discussion is crucial, especially for the healthcare practitioners who remain the biggest victims of such malpractices. In case such discussion is advanced, it could probably incorporate other fields away from the healthcare practices.
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