Holland & Hart Healthcare Law Blog

Supreme Court Holds Arbitration Agreement Under F.A.A.Cannot Be Reviewed For Erroneous Conclusion of Law

There is a growing tendency to incorporate mandatory arbitration clauses in employment and other agreements as an alternative mechanism to resolve disputes. Some arbitration agreements go so far as to self define the scope of judicial review of an arbitrator’s decision. Not infrequently, there is a tension in a case between the equities or basic fairness and the law. An arbitrator, after all, is supposed to be arbitrary. He or she is supposed to quickly and economically cut through the "Gordian knot" of a dispute and do what is right.

"Arbitrition"* In Healthcare Disputes.

           In 1991, the United States Supreme Court gave strong impetus to the enforcement of arbitration agreements in employment contracts when it held that unequal bargaining power between employers and employees was an insufficient reason to hold that arbitration contracts are never enforceable in the employment context.  In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) the court held that an age discrimination act claim can be subject to compulsory arbitration. (*The overlay of cumbersome judicial like process on equitable decision making.)

Colorado Nurse Unable To Show Employer Violation Of Public Policy Based on Violations of Private Organization Code of Ethics.

      Todays posting is by Mark Wiletsky. For more information on this case or wrongful discharge claims generally, please contact Mark Wiletsky at (303) 473-2864 or mbwiletsky@hollandhart.com. 

     In Colorado, and many other states, it is unlawful to force “at-will” employees to choose between their job and violating an important public policy.  Thus, an employee who is terminated for refusing to perform an illegal act, or for exercising an important right or privilege, may be able to assert a claim for wrongful discharge in violation of public policy.  This type of claim, developed by the courts, can be difficult to anticipate because it is often unclear whether an employee’s actions or statements are protected by public policy.  A recent decision from the Colorado Court of Appeals, however, provides some useful guidance and limits when dealing with such claims.

Wisconsin Neopagan Religious Bias Case Against Hospital Will Go to Jury.

Rogers Memorial Hospital, a behavioral medicine organization with facilities in Oconomowoc and other locations in Wisconsin is once again advancing the envelope of legal precedent.  On February 9, a federal judge in the Eastern District of Wisconsin ruled that Thomas Benz, a practicing Wiccan, can take his case to a jury to attempt to convince it that he is a victim of religious bias. Benz v. Rogers Memorial Hospital, E.D. Wis. No. 04-1079 (2.9.06).

“Coy” Hospital may be responsible for sexual discrimination against one of its nurses by independent Dr. Coy.

There is a scarcity of talented surgeons in Southern Illinois.  In the case of Dunn v. Washington County Hospital and Thomas J. Coy, No. 65-1277 ___ F.3d ___ (7th Cir. 2005), Dr. Thomas J. Coy was apparently an economic engine of the Washington County Hospital.  Though an independent surgeon on the medical staff he was in charge of the obstetrics and emergency services in the 59-bed county hospital in Nashville, Illinois.  Lisa Dunn, a nurse formerly employed by the County Hospital, brought an action against the hospital alleging liability under Title VII of the Civil Rights Act of 1964, violation of Constitutional Rights (Equal Protection), and retaliation, among others, all arising out of the alleged conduct of Dr. Coy, who if the evidence is to be believed is no Gentleman.  Ms. Dunn claimed that Dr. Coy made life miserable for she and other female nurses on the hospital’s payroll, while males experienced no similar problems.

Dumping In-House Counsel Can Be Hazardous.

Charlie Mattenson,, Esq. appears to be having the last laugh in his dispute with his former employer, Baxter Healthcare Corporation. Baxter fired Mattenson, a former in-house patent counsel, at Baxter allegedly based upon poor performance reviews. Mattenson sued Baxter based upon a claim of age discrimination in violation of the Age Discrimination Employment Act of 1967 ("ADEA"). In November of 2003 a jury awarded Mattenson backpay damages in the amount of $532,791.28. The award was increased to $1,065,582.56 based upon a determination that the violation was willful.