F. Curt Kirschner Jr.

Kirschner, working with house counsel for his client, the California Hospital Association, forged an innovative partnership with a powerful hospital workers union in 2014 to develop ways to reform the Medi-Cal system. When the pact fell apart and the union sought a statewide ballot initiative to limit hospital executives’ pay, Kirschner became the lead attorney in a series of actions seeking to undo negative fallout for his client from the aborted partnership.

“We tried a different approach to see whether the association could work with one of the leading unions in California,” Kirschner said, speaking of the Service Employees International Union’s United Healthcare Workers. “We negotiated a code of conduct and agreed to focus on a huge health care provider issue — the underfunding of Medi-Cal.”

The usual conflict between management and union was to be set aside while the groups collaborated on a $100 million campaign to increase Medi-Cal payments for hospitals and other health care providers.

“There were good intentions behind [the deal],” Kirschner said, “but it was not successful.” The partnership contained a no-harm clause, which the California Hospital Association contended the union violated when it filed the ballot initiative a month before the pact expired. The initiative, named the Hospital Executive Compensation Act, would have limited hospital executives’ pay to no more than the annual salary and expenses of the president of the United States: $450,000. The hospital association accused the union of using the pay issue as a wedge to gain new members at hospitals and argued it broke the no-harm clause that forbid mutual recrimination.

“Our hope for a collaborative relationship devolved,” Kirschner said. After successfully petitioning a Sacramento County Superior Court judge to compel arbitration over the ballot measure’s validity, Kirschner and colleagues and the union’s lawyers held arbitration hearings over seven days in spring 2016, winning an arbitration award ordering the union to immediately withdraw the measure. Kirschner then confirmed the award in court on an expedited basis, defeating the union’s effort to vacate it. Although the measure had collected nearly 650,000 signatures, more than enough to place it on the ballot, the union pulled it on June 29, 2016, to avoid millions of dollars in penalties.

“That’s behind us,” Kirschner said. “Similar potential agreements, from my perspective, are not going to be explored. Both sides now are focused on concerns over health care reform.” He said his client opposes both the U.S. Senate and House of Representatives versions of reform legislation, as does another Kirschner client, the American Hospital Association. “It’s a privilege to represent hospitals and other health care providers,” he said. “This issue is so important to our society.”

— John Roemer