Elise Dunitz Brennan has practiced healthcare law for over 40 years. She has represented hospitals, nursing homes, managed care companies including HMOs, PPOs and ACOs, mental health facilities, pharmacies, home health entities, welfare benefit plans, ambulatory service providers, various health care joint ventures, and individual physicians, dentists and allied health practitioners.
She has served as outside general counsel for several of these clients. In addition, for the last 10 years, she has taught a class on health care law as an adjunct professor at the University of Oklahoma law school.
We asked her how her expertise informs her approach on the American Arbitration Association® Healthcare Panel.
Q. What types of healthcare disputes do you typically handle as an arbitrator or mediator?
Most of my healthcare arbitrations involve payor provider disputes. In addition, I have handled professional practice dissolutions, reinsurance issues, partnership redemptions, termination of participation status, disputes with PBMS, antitrust disputes, diversion of business and noncompete claims, benefit plan disputes, 340b disputes, sequestration disputes, ERISA fiduciary duty disputes, lending disputes, physician recruiting agreement disputes, wrongful discharge disputes, and sexual harassment disputes.
Q. What drew you to ADR work in the healthcare space? What do you value most about serving as a neutral on the AAA’s Healthcare Panel?
Due to the depth of my knowledge of the health care system, serving as a neutral on the AAA’s Healthcare Panel is a natural fit. I like the complexity of cases, and I like that the cases require me to rely on over 40 years of health law experience. I also like the opportunity to work with outstanding attorneys who serve as party counsel or are on the healthcare panels.
Q. Are you noticing any emerging issues or trends in healthcare cases coming to arbitration?
The attorneys representing payors and providers in contractual disputes have a lot of experience, know each other, and work very well together. They frequently craft creative ways to move cases forward. I have noticed a trend to file an arbitration to conduct discovery prior to a mediation so the mediation will be more productive.
Q. What advice do you have for parties preparing for arbitration or mediation in complex healthcare disputes?
If the case is a payor/provider dispute, I suggest the parties set up a process to provide the requisite documents supporting either their claims or defenses to the other party and that this process happen very early in the arbitration. Then should sampling be necessary, a better protocol, with appropriate bucketing, can be developed. When presenting a case to an Arbitrator, I recommend the parties support their claims or defenses by assuring evidence on each element of a claim or defense is clearly presented to the Arbitrator.