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Negotiating Life’s End on Medi-Cal: Second in the Series

by Victoria Pynchon
July 2011

Settle It Now and ABC of Conflict Blog by Victoria Pynchon

Victoria Pynchon

All I knew in the wake of Cedars-Sinai’s message was that Joel had likely been hospitalized for at least two of the days I’d been on vacation and off-grid.

Luck was with me, however. A return call and several transfers brought me to an authoritative voice announcing “Joel Deutsch’s room.”

The voice was that of Joel’s cardiologist – a tremendously kind man who had been treating Joel’s congestive heart failure for the previous two years.

“I’ve just told Joel what I’m about to tell you,” he said. “There’s nothing more medicine can do for him. His prognosis is not good – a month or two at best. I’m recommending that he be transferred to a skilled nursing facility.”

“Nursing home,” I replied.

“Nursing home,” he acknowledged, giving me the name and address of the place being recommended for Joel’s care.

“I’m sorry,” he said. I thanked him, put down the phone and called my friend Anne, the Kaiser Permanente Health Care manager.

Despite the fact that I’d last been married to Joel when Calvin Klein began losing market share to Guess, I had the health care power of attorney. I knew the decisions I’d be facing – palliative or hospice care, DNR orders, nursing homes, extraordinary medical interventions and, as in my father’s case two years earlier, the specter of feeding tubes.

Preparations to Negotiate

The most powerful – and often the least followed – step anyone can take to achieve her negotiation goals is preparation. As a publication of the Defense Procurement and Acquisition Policy Department asserts in its online Negotiation Preparation materials,

Thorough preparation is the most important prerequisite to effective negotiation. Neither experience, bargaining skill, nor persuasion on the part of the negotiator can compensate for the absence of preparation.

The DPAP flow chart (page 2) lists the following preparation steps:

tailor the negotiation team to the situation
identify negotiation issues and objects
identify your bargaining partners’ history and probable approach
assess bargaining strengths and weaknesses
identify negotiation priorities and potential tradeoffs
determine an overall negotiation approach
prepare a negotiation plan
present the negotiation plan
preparare a negotiation agenda
This step-by-step negotiation preparation process, though designed to help defense department agencies purchase everything from a gross of grenades to a dozen F-15s, is every bit as useful to the woman negotiating health care services for her family, extended family, friends, and, in my case, an impoverished ex-husband.

Nursing Homes, Present and Future

As I quickly learned, the nursing home being recommended by Cedars – a for profit health care facility just down the street from me - had been repeatedly cited for the following “deficiencies:

05/21/2010 Health Pharmacy Service Deficiencies
05/21/2010 Health Nutrition and Dietary Deficiencies
05/21/2010 Health Quality Care Deficiencies
05/21/2010 Health Environmental Deficiencies
02/22/2009 Health Administration Deficiencies
02/22/2009 Health Environmental Deficiencies
02/22/2009 Health Pharmacy Service Deficiencies
02/22/2009 Health Nutrition and Dietary Deficiencies
02/22/2009 Health Quality Care Deficiencies
02/22/2009 Health Resident Assessment Deficiencies
02/22/2009 Health Resident Rights Deficiencies
Tragically, the U.S. government has rated this facility “above average” despite the following statistics:

Metric Percentage of Patients Affected

High-Risk Residents Pressure Sores 19%

Urinary Tract Infections 13%

Moderate to Severe Pain 5%

Short-stay Residents Pressure Sores 29%

Short-stay ResidentsModerate to Severe Pain 35%

If you believe these statistics will not apply to you, be advised that anyone over 65 years of age has a 43% chance of spending some time in a nursing home.

The application of the negotiation preparation steps to Joel’s case tomorrow.

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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