The Need for Conflict Competent Lawyers
ATLANTA – The Center for Law, Health & Society at Georgia State University College of Law hosted guest speaker Debra Gerardi, JD, MPH, RN, President and Chief Creative Officer of Emerging HealthCare Communities, LLC (EHCCO) on October 24, 2012. Gerardi presented “The Impact of Conflict in Health Care and the Need for Conflict Competent Lawyers” to an audience of students, attorneys, mediators, and medical professionals.
“Debra Gerardi is a nationally recognized conflict specialist in health care,” said Charity Scott, Professor and Center Director. “In both her writings and her professional work, she brings a depth of experience from being a nurse, a lawyer, an educator, and a mediator.” Gerardi’s presentation focused on improving patient safety by addressing conflict in health care organizations.
Gerardi described how health care professionals are struggling to meet competing demands. While conflict naturally occurs, the high prevalence of conflict can negatively impact patient care, increase health care costs, and diminish job satisfaction and personal well-being. “Conflict in health care is nothing new,” she explained. “What is new is that there is now empirical evidence demonstrating that our conflicts are causing harm to patients. This is in direct opposition to our core value system in health care: ‘First, do no harm.’”
“We create elaborate work-arounds to avoid conflict or to minimize the damage, rather than have the uncomfortable conversation,” Gerardi observed. “How long will it be until something more severe happens, until the work-around fails?”
Gerardi recommended using alternatives to adversarial approaches such as litigation, arbitration, or even evaluative mediation, which may only address the immediate issue and may heighten the tension long term. Instead, she encouraged health professionals and administrators to engage in on-going conversations in order to identify the root causes of conflict situations, including those stemming from health care practices (e.g. changes in the number of patients served, production pressures or expansion of the type of services demanded), as well as from personal issues (e.g. challenges at home, ongoing interpersonal conflicts, or even substance abuse and other mental health needs). “Once we understand the underlying sources of a conflict, then we need to approach it at the appropriate level. In health care, engaging at the relationship level creates opportunity to learn from the situation, surface and assess the issues, and help professionals to make changes before the next crisis occurs,” she explained.
One of the audience members, Dr. Robert Pettignano, Medical Director Campus Operations at Children’s Healthcare of Atlanta at Hughes Spalding, observed that many physician hospital administrators have been placed in leadership roles due to their skills as doctors, not necessarily because they have any specialized expertise in leading, managing, or dealing with conflict. “How do we develop conflict competence, amidst other competing demands on our time?” he asked. “No one ever taught us how to do this.”
Gerardi explained that developing conflict competence is a life-long journey. “Health professionals learn through mimicking, so we need to have role models for conflict engagement, particularly leaders or senior professionals,” she said. “Education of health care professionals should include training and coaching in this area, to prepare future doctors, nurses, and others at the outset of their careers to deal with conflict appropriately as it arises.”
According to Gerardi, one of the primary ways that health care professionals avoid conflict is to outsource it to someone else. “We send problems to the legal department, to the human resources department, to the ethics department, up the chain of command, anywhere else so that we don’t have to deal with it,” she said.
Because of this, it is important that health law attorneys be conflict competent themselves. “Rather than approaching the conflict from the angle of who is right and who is wrong, as lawyers we can approach the problem by asking questions to separate the legal issues from other issues,” she said. “We can offer options as alternatives to litigation that enable health professionals to engage directly. We can facilitate better understanding between parties by using inquiry such as, ‘what were you thinking about when you included these terms in your contract or protocol? What is the best way to achieve those goals given what you know now?’ We can provide forums for open discussion, incorporate conflict specialists, and we can help to build in provisions and processes to prevent recurrence of the same conflict again in the future.”
Stacie P. Kershner, JD
Associate Director, Center for Law, Health & Society