JAMS ADR Blog by Chris Poole
Ronald Ravikoff, Esq., has been a JAMS neutral since 2012 and has been on the American Healthcare Lawyers Association panel of neutrals since 2014. We spoke with Ron Ravikoff about his extensive experience in health care mediation and arbitration and the advantages alternate dispute resolution (ADR) brings to the health care industry at large.
Tell us about your background and experience in the health care industry.
Prior to joining JAMS in 2012, I was a partner in a litigation boutique that specialized in commercial litigation and white-collar criminal matters. In the early 2000s, there was a significant uptick in parallel prosecutions of health care providers. Our firm was a natural fit for handling both the civil and criminal sides of the disputes. As a result, I found myself immersed in these types of matters for several large national hospital networks. This representation spread into related areas, and soon I was also handling health care antitrust matters, practice group disputes, physician disciplinary matters, HIPAA complaints and general commercial litigation for health care providers.
You have extensive experience in the use of ADR in health care disputes. Please tell us about your approach to dispute resolution.
The key for the neutral is to immerse yourself in the details and idiosyncrasies of the participants. Health care providers often have unique cultures that affect the process. So not only do you have to thoroughly know the law, rules and guidelines governing a dispute, but you must also understand the culture and motivations of the participants. Particular attention must be given to the present and future relationship of the parties. It is typical for a dispute to involve an ongoing relationship that will/must continue after resolution. Care must be taken to protect these relationships. In a mediation, this requires that each side be “heard” and potential future conflicts be addressed. In an arbitration, it is often useful first to have the parties review their arbitration agreement to see if it can be modified by consent to better adapt to the situation. In the peer review context, it is important that both the physician and the panel feel that the process is fair and objective.
Please describe a few benefits of virtual dispute resolution in the health systems context.
Virtual dispute resolution has been a boon to the process in the health care arena. Health care providers have notoriously difficult schedules. The ability to work remotely often relieves some of that pressure by providing greater flexibility in scheduling. It does, however, require some advance planning, particularly in the context of peer review. It is understood that the hospital must have well-drafted bylaws in place and ensure they are continually reviewed by an attorney with expertise in the area. Additionally, the bylaws must be followed precisely. Failure to do so may invite claims of bias.
JAMS Solutions for Health Systems offers medical organizations customized training options. How can medical organizations benefit from these service offerings?
JAMS Solutions offers tailored programs to equip health care institutions with the tools and resources to respond to and resolve disputes before they escalate into costly litigation or arbitration. Through dispute resolution systems design, training and facilitation, our customized programs allow organizations to understand the tools and options available to prevent and resolve conflict in the health systems environment as well as how and when to use negotiation, facilitation, mediation, conciliation, arbitration and other processes. JAMS Solutions equips leaders with the tools to manage internal disruptions and resolve conflicts between staff, create an environment of trust within teams and encourage an environment of physical and psychological safety. Additionally, JAMS Solutions is able to assist with peer review procedures, contract and compensation issues, COVID-19 vaccine mandates and hesitancy disputes with employees, and control over care and treatment policies and practices.
You have extensive experience in conducting peer review hearings. Whom should a medical organization enlist as a third-party neutral to oversee this process, and what should be the neutral’s primary concerns?
Effective peer review is important to a hospital’s efforts to continually improve patient safety and quality of care. The fairness—and appearance of fairness—of the hearing is critical to an effective peer review. Peer review hearings are usually held before a panel of physicians and presided over by a hearing officer. The hearing officer rules on procedural and evidentiary matters, but the physician panel makes the final recommendation. The hearing officer should have no connection to any of the participants or witnesses, but be knowledgeable about conducting evidentiary hearings and be well versed in health care issues. The hearing officer must avoid any ex parte communications. The hearing should be conducted with formality. Counsel should be required to resolve all evidentiary issues prior to the hearing or bring them to the hearing officer beforehand. The goal for the hearing officer is to ensure a fair hearing. Counsel and the hearing officer should make sure that the issue or issues to be decided are clearly defined for the panel. It should be made clear to the panel the scope of their authority. Subject to the bylaws, or mutual agreement, it is suggested that the hearing officer sit in on the panel’s deliberations solely for the purpose of reducing the panel’s decision to a written recommendation. The recommendation is much more likely to clearly address the issues and be issued in a timely fashion if it can be done by the hearing officer rather than a panel of busy volunteer physicians.
Which area do you think will generate a significant number of issues in the health care arena in the near future?
There is growing pressure on physicians and physician groups to consolidate into even larger practice groups. When this happens, physicians’ compensation and autonomy are often affected, which can lead to conflict. Similarly, changes in compensation standards and performance standards, as well as the push for physician joint ventures, can all lead to disputes. There are two factors that I think will generate a lot of disputes. The first is obvious: vaccine mandates, particularly as they relate to employment. The other is that people are living longer, so if the population of senior citizens increases, then disputes involving their care and treatment will likewise increase.
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