Early in the career of Marsha Ternus, when she was a trial lawyer in private practice, she specialized in insurance litigation, which routinely required the interpretation of contractual terms and provisions in the context of disputed issues. Her most meaningful experience in healthcare, however, have been as an arbitrator serving in healthcare cases over the last several years and being exposed to the current range of issues arising in this unique area.
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?
My caseload includes a heavy dose of payor/provider disputes, as well as pharmacy benefit management disputes, including disputes over reimbursement, payment of rebates, DIY fees, and terminations from networks. But beyond those cases, the healthcare disputes I have arbitrated include a wide range of issues, including the any-willing-provider law; 340B claims; ERISA violations; violations of Insurance Trade Practices Acts and of Prompt Pay Laws, franchise disputes, and disputes over the dissolution of medical entities.
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?
I am attracted to the complexity of the contractual issues that arise in this field, alongside the expertise and professionalism of the attorneys who represent parties in healthcare arbitrations. I also value the opportunity to help the parties craft a functional and organized process for a fair and prompt resolution of their dispute.
Q. How has your judicial experience shaped the way you approach healthcare arbitration or mediation?
My judicial experience has had a profound impact on my approach to healthcare arbitration. As a judge, I valued fairness and impartiality, and rendered decisions based on the evidence and controlling law. I bring these values and skills to healthcare arbitrations to ensure a fair and timely process and principled decisions.
Q. Are you noticing any emerging issues or trends in healthcare cases coming to arbitration?
It seems I am seeing more pharmacy benefit management disputes, including disagreements over reimbursement, payment of rebates, DIY fees, and terminations from networks.
Q. What advice do you have for parties preparing for arbitration or mediation in complex healthcare disputes?
Identifying and submitting evidence is only part of an effective presentation of a party’s case. Counsel must strategically curate and organize the evidence in a manner that presents a clear vision of how the law and evidence work together to reach that party’s desired result, supported by effective briefing that provides a road map to the arbitrator. Simplify the facts. Eliminate unnecessary and distracting exhibits. Focus on the outcome-determinative issues and, in simple and precise terms, walk the arbitrator through each step leading to the conclusion for which you advocate.