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Health & Fitness

Set up health arbitration centres to cure disputes

Police officers
An Administration Police officer with an employee of St Mary’s Mission Hospital, Langata, on Dec 28, 2017. FILE PHOTO | NMG   St Mary’s Mission Hospital

A popular dispute scenario given in health business training modules, particularly on partnerships, is a case where three partners form an enterprise and contribute different forms of capital: one puts in sweat equity, the other operational cash with the last offering land and buildings. After successful enterprise the business gets a suitor who offers to retire the trio. Here is where the problems start.

Disputes seem to be on the rise in established entities at change of ownership. Last year Kenyans were treated to a courtroom drama involving a local hospital chain. This included summary dismissal of its staff by one group and was punctuated by forceful evictions from the premises by gangs. Succession features prominently in business suits when family or estate administrators come on board without a historical background of the enterprise’s founding arrangements.

On a recent search in the judiciary records’, there seems to be a rise in disputes involving health entities and these will certainly increase. Areas of conflict ranged from medico-legal, human resource, financial, ownership of intellectual rights as well as workplace injuries compensation. Disputes involving procurement and supply of medical equipment and services to the government were many and seemed to take the longest to settle.

Others involved copyright infringement especially with pharma distributorship agreements. Patent disputes for medicines, procedures or devices pitted not just rivals but also employee and employer.

But with our court system overwhelmed by a backlog duration of up to seven years in some instances, medical entrepreneurs need to be aware of alternative dispute resolution avenues.

Usually, several paths are taken when disputes arise. Some go directly to court such as regulatory non-compliance to licensing or operational laws. Others like medico-legal and financial ones end up in court on failure of the initial efforts.

Though the judiciary seems to be on a reform path, those who have had a taste of perennial adjournments, lost files and concerns over potential compromise of the system may have little faith in the process. Such parties could use arbitration.

Several arbitration centres have set up shop to seize opportunity of those keen to avoid winding long corridors of our justice system. Their goal is to avoid lengthy costly cases. These are a mix of both government departments as well as private ones. Most do general arbitration but some have specific areas of interest. However, none seems to focus on the health sector.

Officers of the Judiciary seem to acknowledge its handicap and suggest where alternative dispute resolution mechanisms are available, parties should strive to exhaust these first before going to court.

The fear usually is that these alternatives are not trustworthy. Education of the arbitration process should be done to shed more light.

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