From the Mediation Matters Blog of Steve Mehta.
Having litigated many medical malpractice cases and as a mediator of those same cases, I have come across many arguments regarding the efficacy of mediation in the medical malpractice context. Many argue that unless all discovery has been completed, mediation is ineffective. Others say that mediation is effective from the very beginning. Yet others offer blame for failed mediations from a partisan perspective. Regardless of the view of mediation in malpractice cases, it is clear that mediation has become a preferred tool for resolving these type of disputes. Recently, A study of mediation in medical malpractice cases found that mediation is beneficial according to the participants but that a key missing ingredient, however, is the doctors themselves.
The study, co-authored by Carol Liebman, , a professor of law at Columbia Law School and director of the school’s mediation clinic was published in the Journal of Health Politics, Policy and Law. The study evaluated 31 cases from nonprofit hospitals in New York City.
The study revealed that 51% of the cases were settled at mediation and another 16% were settled shortly after; leaving 32% unsettled. The study also found that defense attorneys were less likely to agree to mediation than plaintiff attorneys. However, when attorneys participated, they were satisfied with the process. Moreover, the parties (plaintiffs, insurance and hospital representatives) that were involved were also satisfied with the process.
The authors also found that in no cases did physicians participate in the mediation. According to Professor Liebman, that misses some opportunities to “repair the relationship between human beings.”
When you don’t have the involvement of “the person who is involved in these decisions, day in and day out, you don’t get valuable information,” Liebman says. “A lawyer’s job is to defend the case, not to reshape policy.” Mediation, she says, offers the opportunity to improve patient safety in a way litigation cannot.
It is also interesting because in all but a few of my medical malpractice mediations, the doctors do not attend. The study cites reasons such as work schedules and defense attorneys not requiring such attendance. It is also interesting to note that the plaintiffs — to a person — are always surprised when they show up at mediation to find that the doctor is not there. Indeed, in the book cited in my prior post listed above, the study also found that plaintiffs expected to get answers from the doctors at the mediation.
I agree that the commercial mediation process is missing an opportunity to repair relationships and to reflect answers. It also is missing the opportunity for physicians to learn from the process; not just the medical issues, but also to try and understand why they ended up in a lawsuit in the first place. Research has indicated that communications issues are prevalent in the filing of lawsuits against doctors. Indeed, one study found that 85% of malpractice payouts were done by 6% of the physicians. The reason was not the quality of the care, but the quality of the communication. Another study found no connection between the number of lawsuits and the quality of the treatment. According to a study done by Hickson and Associates, ”Physicians who have been sued frequently are more often the objects of complaints about the interpersonal care they provide–even by their patients who do not sue.” If the physician attended the mediation, he or she may get a better understanding in a confidential process about why she got sued in the first place and what she could have done to avoid it.
Often parties are less connected to the impact of litigation until they attend mediation. Indeed, this concept is true for both sides. Having them both present certainly would allow both sides to truly understand what it means to be in litigation and how to avoid it in the future.
Wall Street Journal, December 14, 2010.
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