Archive for year: 2021

By: Marki Stewart, Coppersmith Brockelman PLC

Maternal mortality in the United States has more than doubled in the last 30 years—women living in the United States today are 50% more likely to die in childbirth than their mothers were a generation ago. Researchers estimate more than half of these deaths are preventable.

Alarmingly, the path to motherhood is significantly deadlier for women of color than it is for their white counterparts. Nationally, black women are three to four times as likely to die from pregnancy-related causes than white women, a disparity that has only widened in recent years.[i] Surprisingly, these disparities increase with age and education; data from the Centers for Disease Control and Prevention demonstrates that pregnancy-related deaths for black women with at least a college degree are five times higher than white women with a similar education.

Closer to home, the rates are likewise alarming. On October 22, 2021, the Arizona Society for Healthcare Attorneys (AzSHA) presented a panel discussion regarding the data in Arizona showing that women of color have higher rates of maternal mortality than their white peers. Native Americans have the highest maternal mortality rates in Arizona, at more than four times higher than white non-Hispanic women.[ii]

Although the causes of death vary—including cardiovascular diseases, hypertension, pulmonary embolism, and hemorrhage, among others—by and large, women die because they do not receive early, effective, and aggressive lifesaving treatment. Despite most preventable events being preceded by vital sign changes, structural racism and health care providers’ implicit biases may lead to delayed responses to clinical warning signs.[iii] A provider’s failure to quickly identify warning signs to rescue a pregnant woman or new mother can lead to catastrophic consequences.

Healthcare attorneys must help clients address this dire situation. Whether serving as general counsel for a hospital, counsel to a payor, or representing individual physicians or physician groups, attorneys can use their positions of power to influence key decisionmakers who directly impact this problem. Attorneys should impress upon their clients that increased maternal mortality for women of color is not only an issue of justice in healthcare, but any situation in which sub-standard care is provided also creates potential liabilities and must be urgently addressed.

Here are eight ways attorneys can leverage their influence to enact positive change:

1. Urge hospital leadership to participate in the Arizona Alliance for Improvement of Maternal Health Collaborative (AIM).
   
   Administered by the Arizona Hospital and Healthcare Association, AIM is a quality improvement initiative that helps hospitals implement Patient Safety Bundles, a series of evidence-based practices that reduce provider bias and ensure a timely and tailored response to a wide variety of objective clinical warning signs. In addition to addressing certain clinical symptoms, the Patient Safety Bundles address patient support, including standards for recognizing and treating perinatal depression and anxiety. Participating hospitals also provide valuable data to better understand the challenges in Arizona and track progress toward state and national goals.[iv]
   
   
2. Recommend that all hospital, physician, and physician group staff members interacting with patients receive implicit bias training on a recurring basis.
   
   Implicit bias training uses techniques to recognize and understand the magnitude of unconscious bias, helping to de-bias patient care. A variety of programs are available, and can be performed in-person or virtually, both free or for cost. The March of Dimes’ Breaking Through Bias in Maternity Care, a training session that can be done in-person or by virtual learning experience, provides an overview of implicit bias and personal assessment, strategies to mitigate racial bias in maternity care, and a plan for building a culture of equity within an organization.[v] Some healthcare organizations choose to perform internal implicit bias training sessions that are tailored to their needs.
   
   
3. Encourage hospitals and physician groups to hire health care providers of color.
   
   Tragically, as with their mothers, black newborns die at three times the rate of white infants in the United States. Research demonstrates that black newborns cared for by black physicians have 50% reduced mortality compared to black newborns treated by white physicians. Furthermore, racial concordance with one’s physician can increase health care utilization among under-resourced communities.[vi] If the hospital or physician group finds it difficult to recruit providers of color, encourage them to start a scholarship program to invest in young medical and nursing students of color.
   
   
4. Recommend hospitals and obstetric physician practices hire doulas and offer doula care to all pregnant women.
   
   Doulas are non-clinical professionals who provide physical, emotional, and informational support to mothers before, during, and after childbirth. Data shows doulas increase patient satisfaction with the birthing process, decrease the risk of C-section, and decrease the risk of newborns being sent to the NICU.
   
   
5. Advocate for hospitals and obstetric practices to consider offering group prenatal care, an alternative model of prenatal care delivered in a group setting for peer social support, skill building, and education.
   
   Women who participate in group prenatal care with other women at similar gestation ages receive approximately 20 hours of prenatal care over the course of their pregnancies, compared to approximately two hours in traditional individual care settings. The American College of Obstetricians and Gynecologists determined that group prenatal care resulted in reductions in pre-term birth and NICU admissions, increased birth weight for infants, decreased emergency department visits in the third trimester, and increased patient satisfaction.
   
   
6. Advise payors, such as private health insurers or AHCCCS, to adopt payment policies that are demonstrated to improve maternal care.
   
   Health insurers have a critical role to play because providers may not pursue necessary care if reimbursement will not follow. Payment policies that encourage good maternal care include an extension of AHCCCS coverage for pregnant women for up to one year after birth. Currently, when someone enrolled in AHCCCS gives birth, their coverage may expire just sixty days after their pregnancy ends, meaning that many low-income mothers are forced to forego necessary postpartum health care because they can’t afford the expense; indeed, almost 20% of maternal deaths occur 43 days to 1 year after delivery.[vii] Payors should also expand reimbursement for doulas, group prenatal care, home visits, and mental health treatment for pregnant and post-partum women. Some payors have begun to reimburse for implicit bias training, and others should follow suit. [viii] Payors can also provide outcome-based reimbursement incentives for providers to close gaps in maternal health.
   
   
7. Encourage hospitals and physicians to collaborate with the Native American community to address Native communities’ lack of access to care, and to offer care options that respect the community’s culture, values, and beliefs.
   
   The physical distance between Native American communities and hospitals makes it hard for Native women to access care; some studies show that Native American women have half as many prenatal visits as their white counterparts, making it difficult to identify health problems at an early stage. Hospitals and physicians can adopt a home visit program in which doulas, midwives, nurses, or social workers travel to the woman’s home to provide care and offer support on a wide variety of issues impacting social determinants of health.[ix]
   
   
8. Recommend physician and physician group clients participate in a variety of programs aimed at improving maternal care and eliminating racial biases.
   
   Excellent examples of existing programs and tools include:
   • The American College of Obstetricians and Gynecologists’ “Every mom. Every time.” program provides extensive training and guidance on clinical warning signs.[x]
     
   • The Association of Women’s Health, Obstetric and Neonatal Nurses’ Post-Birth Warning Signs Education Program teaches best practices on a variety of topics impacting maternal mortality, including disseminating information to patients to increase their recognition and response to life-threatening symptoms.[xi]
     
   • The Agency for Healthcare Research and Quality’s Toolkit for Improving Perinatal Safety aims to improve patient safety, team communication, and quality of care[xii], and its Guide to Patient and Family Engagement in Hospital Quality and Safety promotes better engagement between patients, families, and health professionals.[xiii]

The United States’ increasing maternal mortality rate, borne largely on the backs of women of color, has become a public health crisis that all players in the health care industry should work to improve, including health care attorneys. AzSHA is committed to continue addressing this issue, and we welcome our members’ feedback and insight into creative ways that attorneys can help. If you are interested in collaborating with other attorneys on this issue, please reach out to Marki Stewart, at mstewart@cblawyers.com.

[i] See Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229 (2020).

[ii] A 2017 report from the Arizona Department of Health Services’ Maternal Mortality Review Program

demonstrates that Arizona’s maternal mortality rate is at 25.1 deaths per 100,000 live births (2012-2015). This

ranks Arizona 25th in the nation. Native American/Indigenous women died at four times the rate (70.8

per 100,000 live births) compared to White non-Hispanic women (17.4 per 100,000 live births) despite

Native Americans representing only 6.0% of the births. The maternal mortality rate for Hispanic/Latina

women was 22.4 per 100,000 live births while the maternal mortality rate for Blacks, Asian, and Pacific

Islander women combined was 44.0 per 100,000 live births. See ADHS maternal Mortality Action Plan, June 2019, available at https://azdhs.gov/documents/operations/managing-excellence/breakthrough-plans/maternal-mortality-breakthrough-plan.pdf.

[iii] For additional information about health care providers’ implicit biases impacting their perception of pain and treatment plans for patients of color, see “Racial Bias in Pain Assessment and Treatment Recommendations, and False Beliefs About Biological Differences Between Blacks and Whites,” Kelly M. Hoffman, et al., Proc Natl Acad Sci U S A. 2016 Apr 19; 113(16): 4296–4301, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4843483/.

[iv] For more information about how to participate in AIM, see https://www.azhha.org/arizona_aim_collaborative.

[v] Further information about this training can be found here: https://ww.ahapac.org/system/files/media/file/2020/12/march-of-dimes-breaking-through-bias-maternity-care.pdf. Organizations can inquire about an in-person training session by completing this form: https://www.marchofdimes.org/professionals/implicit-bias-training-form.aspx.

[vi] “Physician-Patient Racial Concordance and Disparities in Birthing Mortality for Newborns,” Brad N. Greenwood, et al., PNAS September 1, 2020 117 (35) 21194-21200, available at: https://www.pnas.org/content/117/35/21194.

[vii] The Build Back Better package passed by the U.S. House of Representatives would mandate one year of postpartum Medicaid care. If enacted by the Senate without this provision, Arizona’s legislature would need to grant AHCCCS statutory authority to enact this change.

[viii] See https://www.forbes.com/sites/debgordon/2021/04/20/us-health-insurer-announces-new-plan-to-reduce-racial-disparities-in-maternal-health-by-50-in-five-years/?sh=3f6ad5b11ebd.

[ix] For more information on the benefits of home visits, see https://mchb.hrsa.gov/maternal-child-health-initiatives/home-visiting-overview. For information about reimbursement for home visits, see https://www.americanprogress.org/article/home-visiting-programs-vital-maternal-infant-health/.

[x] See https://www.acog.org/advocacy/policy-priorities/maternal-mortality-prevention.

[xi] See https://www.awhonn.org/education/hospital-products/post-birth-warning-signs-education-program/.

[xii] See https://www.ahrq.gov/hai/tools/perinatal-care/index.html.

[xiii] See https://www.ahrq.gov/patient-safety/patients-families/engagingfamilies/index.html.

By: Paul J. Giancola and Claudia E. Stedman, Snell & Wilmer

Healthcare providers and counsel frequently view arbitration agreements as more efficient and more cost-effective alternatives to litigation—and indeed, in many circumstances, this form of alternative dispute resolution can be a critical tool in managing costs and helping parties reach a compromise more efficiently. Recent Arizona case law on arbitration clauses in the context of medical malpractice cases serves as a reminder of the issues that counsel should be mindful of in drafting these contractual provisions for their healthcare clients.

Heaphy v. Willow Canyon Healthcare, Inc.

On May 18, 2021, the Arizona Court of Appeals ruled in Heaphy v. Willow Canyon Healthcare, Inc. that a wife acting in the capacity of her husband’s healthcare power of attorney (HPOA) did not have authority to bind her husband or his estate to an optional arbitration agreement when admitting him to a nursing home when the wife failed to indicate that she was the legal representative or agent. 251 Ariz. 358, 491 P.3d 1165 (Ct. App. 2021).

By way of background, in 2012, Charles Heaphy appointed his wife, Shirley Heaphy, as his HPOA. In 2017, Ms. Heaphy admitted her husband to Pueblo Springs Rehabilitation Center—a skilled nursing and rehabilitation center. The contract that Mrs. Heaphy signed with the facility included an optional arbitration agreement, asked for the signature of a “Legal Representative or Agent,” and “directed an agent signing in that capacity to also execute on the same page a separate ‘Acknowledge of Legal Representative or Agent.’” Id. at 1167. Mrs. Heaphy signed her husband’s name on the resident line and signed her own name on the adjacent signature line. She did not sign as the legal representative or the acknowledgment. Mr. Heaphy passed away a few weeks after he was admitted to Pueblo Springs.

In 2019, Mrs. Heaphy, acting in her capacity as personal representative of Mr. Heaphy’s estate and on behalf of all statutory beneficiaries (Plaintiff), sued Willow Canyon Healthcare—the owner of Pueblo Springs—and the doctor who treated Mr. Heaphy. Mrs. Heaphy alleged elder abuse, negligence, negligent hiring and supervision, and wrongful death. Id. at 1167-68.

Willow Canyon filed a motion to compel arbitration based on the contract with the skilled nursing facility that Mrs. Heaphy filled out when her husband was admitted. Plaintiff argued, however, that the contract was not enforceable because it was unconscionable, and that Mrs. Heaphy lacked authority to bind either the estate or the beneficiaries. The trial court denied the motion to compel arbitration, but held an evidentiary hearing to assess whether Mrs. Heaphy had the authority to sign the contract with Willow Canyon as her husband’s agent. The trial court held that the estate’s claims were not subject to the arbitration clause in the agreement with Willow Canyon because though Mrs. Heaphy was HPOA, she was not authorized to sign the contract on her husband’s behalf, and that it was procedurally unconscionable under the circumstances.

Willow Canyon appealed the trial court’s decision, arguing that Mrs. Heaphy had actual authority, either express or implied, to sign the agreement and, even if she lacked such authority, she should be equitably estopped from denying such authority, the agreement was not unconscionable, and the Federal Arbitration Act (FAA) preempted Arizona case law “holding that an arbitration agreement cannot bind non-signatories.” Id. at 1168.

The Arizona Court of Appeals stated that it was required to defer to the trial court’s factual findings absent clear error. Therefore, the Court affirmed the trial court’s decision to deny Willow Canyon’s motion to compel arbitration for the following reasons:

First, on the issue of express actual authority, the Court examined the plain language of the HPOA and found that it authorized Mrs. Heaphy to have full authority to make decisions regarding healthcare, but only limited authority “to seek damages from a healthcare provider for its failure to comply with Charles’s refusal of treatment or his wishes . . . .” Id. at 1169. Further, because the arbitration clause was optional and “not required for Charles to be admitted into Pueblo Springs, it was not a healthcare decision as contemplated by the HPOA.” Id.

Second, the Court found that Mrs. Heaphy lacked implied actual authority to bind her husband’s estate because the HPOA did not “expand the scope of her authority such as to encompass the optional” arbitration agreement.” Id. at 1170.

Third, the Court found that the elements of equitable estoppel were not met because, among other things, Mrs. Heaphy’s signing of the optional arbitration agreement “did not represent that she had authority to bind Charles and his estate, particularly when she did not sign the line provided for the ‘Legal Representative or Agent’ and the related acknowledgement on that page.” Id.

Fourth, the Court determined that the trial court’s decision was consistent with both Arizona law and the FAA and that the arbitration agreement was unenforceable because Mrs. Heaphy lacked authority to enter into it on behalf of her husband. Id. at 1171.

In summary, the Court of Appeals found that an HPOA is limited in scope and does not confer the legal authority for the HPOA to waive legal right such as trial by jury. In contrast, an appropriately drafted power of attorney and signed arbitration provision likely would have conferred the appropriate legal authority to require that Mr. Heaphy and his estate arbitrate. A potentially open question, but likely derivative of the first question is whether the beneficiaries would also be bound by the agreement to arbitrate.

Considerations for Arbitration Clauses in the Context of Medical Malpractice

The current legal landscape is such that courts will try to enforce binding, pre-dispute arbitration agreements, even in the medical malpractice context. While there is strong public policy favoring arbitration agreements, there are common pitfalls that drafters of such agreements should watch out for.  

Drafting Considerations & Unconscionability

From a practical standpoint, it is important to consider the sometime overlooked drafting and structure of arbitration clauses. In the context of medical malpractice claims, courts balance the public policy and efficiency considerations of arbitration agreements against the fact that patients or their caregivers may fail to comprehend what legal rights they are relinquishing by signing an arbitration agreement. Therefore, courts scrutinize arbitration provisions more closely than they would in a commercial context. Courts look at both substantive (overly oppressive terms or unduly harsh to one party) and procedural (the process for entering into the agreement) unconscionability.

An unconscionability claim can be successfully argued if an arbitration provision is unduly one-sided or makes medical care contingent on agreeing to arbitrate. In Gullett v. Kindred Nursing Centers West, LLC, the nursing center moved to compel arbitration pursuant to the contract between it and the Plaintiff. 241 Ariz. 532 (Ct. App. 2017). The Plaintiff opposed the motion, arguing that the arbitration agreement was substantively unconscionable if not procedurally unconscionable. Id. at 535. In evaluating whether the arbitration agreement was substantively unconscionable, the Court considered whether the “amount of permitted discovery is so low and the burden to obtain additional discovery so high that the litigant is effectively unable to vindicate their claim.” Id. at 536.

In Gullet, the Court found that because the arbitration agreement allowed for “30 interrogatories, 30 requests for production, 10 requests for admission, six lay depositions and two expert depositions,” the agreement was not substantially unconscionable. Id. at 537. The Court likewise disagreed with the Plaintiff on the procedural unconscionability claim, finding that because the arbitration agreement required the parties to find an impartial arbitrator or select from an approved list, there was mutuality and the agreement was fair. Id. at 539.

When writing an arbitration agreement, drafters should consider writing the provision out in bold type or capitalized letters to focus the signor’s attention and highlight the particular language so that the patient is put on notice that they are giving up certain legal rights. In the case of a particularly voluminous contract—as in the Heaphy case where the entire contract with the skilled nursing facility was almost 60 pages long—drafters may want to consider having the arbitration provisions set off in an entirely separate document from the rest of the agreement. Additionally, using plain, simple language is important in defending against a potential claim that the contract is unenforceable because the patient did not understand what he or she was signing.  

Simply because a contract is one of adhesion does not make it automatically unenforceable. However, courts will consider “take it or leave it” agreements in light of whether the patient “knowingly consented to the clause and what the patient’s reasonable expectations of signing that provision were.” Broemmer v. Abortion Serv’s of Phoenix, Ltd., 173 Ariz. 148, 152 (1992). For this reason, when drafting an arbitration agreement, counsel may also want to include language clearly indicating that signing is an arbitration agreement is voluntary and that a patient’s medical care will not be contingent on whether they agree to arbitrate or not.

Drafting considerations go hand-in-hand with upholding the enforceability of an arbitration agreement. To avoid a claim that a contract is unconscionable, counsel and providers should evaluate the patient’s expectations and ensure that the patient has knowingly consented to the agreement. Patients should be informed of the arbitration agreement prior to consenting to the medical treatment or procedure. Terms that limit discovery or limit recovery of damages should likely be omitted. Finally, counsel should frequently review the terms of the arbitration agreement and update the language as necessary.