Select two of the scenarios provided below. Analyze the facts in the scenarios and develop appropriate arguments/resolutions and recommendations. Support your responses with appropriate cases, laws and other relevant examples by using at least one scholarly source from the SUO Library in addition to your textbook for each scenario. Do not copy the scenarios into the paper. Cite your sources in APA format on a separate page. Submit the paper to the Submissions Area by the due date assigned.
Scenario I: Courts and Alternative Dispute Resolution
Alana Mendes suffered from Alzheimer’s, and was admitted to the Bay Pines Rehabilitation Center. Because of her mental condition, Alana’s daughter, Juanita, completed the admissions paperwork and signed the admissions agreement. The admissions documents included a clause that required parties to submit any disputes for arbitration. When Alana was released from the center four months later, she sued for negligent treatment and malpractice during her stay. Bay Pines moved to require arbitration.
This is a claim of negligent care, not a breach of a commercial contract. Is it ethical for medical facilities to impose mandatory arbitration? Is there really any bargaining over such terms?
Should a person with limited mental capacity be held to the arbitration clause agreed to by the next-of-kin who signed on behalf of that person?
Scenario II: Due Process and ADR
In 2016, a report found extremely high rates of obvious plagiarism in the theses of graduate students in the MBA program in the College of Business at Western State University. Two full-time faculty members and three adjuncts were identified for ignoring their ethical responsibilities and contributing to negligence toward issues of academic misconduct. Assistant Professor Mark Day was one of the five professors identified in the report. The findings were published during a press conference in May 2016. The dean of the College of Business, Derrick Dawson, removed Day's responsibilities for advising graduate students and scheduled him for undergraduate courses for the next semester. Day filed suit in a federal district court against Dawson, the university, and others for violating his due process rights by publicizing accusations about his role in plagiarism without providing him with a meaningful opportunity to clear his name in public.
What does due process require in these circumstances?
Would the outcome be different if a mandatory arbitration clause was provided in Day’s contract and the university filed to dismiss the suit to require arbitration?
Scenario III: Regulatory Agencies and Ethics
Jessica Smith is the vice president of new drug development at Generic Phama, Inc, a pharmaceutical research company in Boston, Massachusetts. One year ago, she filed an application with the Food and Drug Administration (FDA) to obtain approval of a new drug for treating cancer. Smith met Joe Spencer at a convention three months ago and invited him to her room at the hotel. The two parted ways. Spencer worked as the director for approval of new drugs at the FDA. Two weeks later, Spencer wrote Smith a letter on FDA letterhead stating, “It was nice to see your name cross my desk on our company’s application for approval of the new cancer drug. I’d really like to see you again. Why don’t you come visit me in Washington this weekend?”
Smith considered requesting that the petition be referred to another director at the FDA. However, she is concerned that the transfer would delay the approval process for at least a year. Smith’s chief scientist advised her that a key competitor plans to introduce a similar drug on the market in three months.
Are there any legal or ethical barriers to relationships between corporate officers and members of administrative agencies involved in reviewing or regulating corporate activity?
What should she do?
What would you advise her to do if you were head of human resources or legal counsel for Generic Pharma, Inc.
Support your responses with examples.
Full Answer Section
On the other hand, mandatory arbitration can also have significant drawbacks. One concern is that arbitration clauses often favor the institutional party, such as a medical facility. This is because corporations have more resources and experience with arbitration than individuals. Additionally, arbitration clauses can limit the remedies available to patients, such as punitive damages.
In the case of Alana Mendes, it is particularly troubling that she was bound to an arbitration clause that she did not personally agree to. Her daughter, Juanita, signed the admissions agreement on her behalf, but Alana may not have had the mental capacity to understand the terms of the agreement. This raises concerns about due process and informed consent.
Based on the above considerations, I believe that mandatory arbitration should not be used in medical malpractice cases. Patients should have the right to choose whether to pursue their claims through arbitration or litigation. Additionally, medical facilities should not be allowed to take advantage of patients' vulnerability by imposing arbitration clauses that they do not fully understand.
Scenario II: Due Process and ADR
Mark Day's case raises the question of whether universities can violate professors' due process rights by publicizing accusations about their misconduct without providing them with a meaningful opportunity to clear their name. Due process is a fundamental principle of American law that requires that the government provide individuals with notice and a fair hearing before depriving them of their life, liberty, or property.
In the context of employment, due process generally requires that employers provide employees with notice of the allegations against them, an opportunity to respond, and an impartial review of the evidence. However, the specific requirements of due process can vary depending on the circumstances.
In Day's case, it is unclear whether the university violated his due process rights. The university conducted an investigation into the allegations of plagiarism and concluded that Day had engaged in misconduct. However, Day was not given a formal hearing or an opportunity to cross-examine the witnesses against him.
If Day's contract had included a mandatory arbitration clause, the university could have argued that the dispute should be resolved through arbitration rather than litigation. However, it is unclear whether this would have been successful. Courts have been increasingly skeptical of mandatory arbitration clauses that waive an employee's right to pursue claims in court.
Based on the above considerations, I believe that Day may have a viable due process claim against the university. The university should have provided him with a more formal opportunity to defend himself against the allegations of plagiarism.
Scenario III: Conflicts of Interest andRegulatory Agencies
Jessica Smith's case raises the question of whether there are any legal or ethical barriers to relationships between corporate officers and members of administrative agencies involved in reviewing or regulating corporate activity.
Conflicts of interest are a serious concern in government because they can undermine the public's trust in the government and lead to biased decision-making. A conflict of interest arises when an individual has a personal or financial interest that could influence their impartial judgment.
In Smith's case, her relationship with Spencer, the director for approval of new drugs at the FDA, could be considered a conflict of interest. Spencer's decision on whether to approve Generic Pharma's new cancer drug could be influenced by his personal relationship with Smith.
The FDA has a number of rules in place to prevent conflicts of interest among its employees. These rules require employees to disclose any relationships they have with individuals or companies that they regulate. Additionally, employees are prohibited from engaging in any activities that could create the appearance of a conflict of interest.
In Smith's case, it is unclear whether she violated any of the FDA's rules on conflicts of interest. However, her relationship with Spencer does raise concerns about the fairness and impartiality of the FDA's review process.
Based on the above considerations, I believe that Smith should disclose her relationship with Spencer to the FDA. The FDA can then determine whether the relationship creates a conflict of interest and take appropriate action.
Recommendations
In conclusion, I believe that the following recommendations should be implemented to address the ethical issues raised in these scenarios:
- Medical facilities should not be allowed to impose mandatory arbitration on patients in medical malpractice cases.
- **Universities should provide professors with a meaningful opportunity to defend themselves against allegations
Sample Answer
Scenario I: Mandatory Arbitration in Medical Malpractice Cases
Alana Mendes' case raises the question of whether it is ethical for medical facilities to impose mandatory arbitration on patients or their representatives. Arbitration is a form of alternative dispute resolution (ADR) that is often used in commercial contracts to avoid the expense and time of litigation. However, in the context of medical malpractice, mandatory arbitration can raise concerns about fairness and access to justice.
On the one hand, mandatory arbitration can provide benefits to both patients and medical facilities. Arbitration is typically less expensive and more expeditious than litigation. It can also be more private and confidential, which may be appealing to some patients. Additionally, arbitration can provide a more neutral forum for resolving disputes than the traditional court system.