Why doctors should embrace mediation for medical malpractice

Mediation has been cited as a way to lower the cost of litigation and compensate injured patients without going through the ordeal of a trial.

In post from the WSJ Health Blog, the problem is few doctors are participating.

That’s a problem.

A study from a law journal looked at 31 cases that went to mediation, and found that,

of those cases, 16 were settled at mediation, 5 settled afterward and 10 weren’t settled. While defense attorneys were less likely to agree to mediation than plaintiff attorneys, lawyers who did participate reported satisfaction with the process, as did “plaintiffs, hospital representatives and insurers,” the study finds.

The authors write that in no cases did physicians participate in the mediation.

Many times, patients resort to suing their physicians simply to find out what happened. In a recent post here, attorney Brian Nash provided perspective from the legal standpoint, and in the comments (now 150+ strong), you can see the dissonance between the malpractice viewpoints of the physician, attorney and patient.

Mediation has the advantage of getting all the involved parties together prior to an adversarial trial. For the families, this can clear up unanswered questions. This also benefits doctors, who often want to talk to families after a mistake, but often cannot because “they are … discouraged from attending by hospital administrators and lawyers, who are thinking ahead to what happens if the case goes to trial.”

Early settlements via mediation is also a faster way to compensate legitimately injured patients. As I wrote earlier this year in USA Today,

nearly one in six cases involving patients injured from medical errors received no payment. For patients who did receive compensation, they waited an average of five years before their case was decided, with one-third of claims requiring six years or more to resolve. These are long waits for patients and their families, who are forced to endure the uncertainty of whether they will be compensated or not.

Physicians often complain about the ordeal of a malpractice trial. Mediation is one potential solution to mitigate their fear. It’s too bad doctors aren’t participating. Or, more accurately put, discouraged from doing so by their administrators.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on FacebookTwitterGoogle+, and LinkedIn.

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  • Doc99

    Kevin, in some pilot projects, the claimant can opt out during every step of the way. This tends to dampen the enthusiasm of potential defendants.

  • Matt

    Doc99, all mediation is nonbinding. The enthusiasm of the defendants means next to nothing. Their insurers are who runs their shows.

  • http://Www.twitter.com/alicearobertson Alice

    Considering the thread about the article, attorney Brian Nash authored…it seems Kevin is trying…almost in vain to wake up a stubborn crowd?  It was dismaying to view doctors reading stats and just waltzing past them on some ivory road to a pity party.  Sigh!

    When a potion of doctors can jump start the logical part of their brains…then get an ego lobotomy….doctors like Kevin will win many more battles not only with patients…but the PR battle that is causing mistrust of doctors.  Sometimes you wonder if doctors like ignorant patients who worship them like the Greeks did their mythical gods…..but they were eventually enlightened….a reformation of information…just as the Internet is giving patients a whole lot to think about….knowledge is clearly empowering…and it is wonderful that patients can call doctors to task via their own records and self-study.  

    Patients can keep the ever-so-suffering (supposedly) doctor accountable…and, ultimately….hopefully…prayerfully…prevent doctor error and cut down malpractice with knowledge and action.  Because doctors are so busy blaming everyone but themselves it is almost insufferable to even try to open a true dialogue with many of them.  They portray themselves as Florence Nightingale types who are being sued out of their charitable roles.  I am thinking the shift in power is similar to a type of midlife crisis for many doctors….while younger doctors have different visions and expectations?  

  • http://www.ServantLawyership.com Kathleen Clark

    Mediation is generally called into play, even ordered by courts, well into the litigation process, after substantial time and money have been spent. By then, the adversarial stance is well entrenched, suggesting an uphill battle to shift to collaborative, cooperative thinking and practice.

    I recently read a book, Perceptions in Litigation and Mediation, which addresses mediation practices in medical malpractice cases. The findings, based on substantial discussions with and examination of the med mal mediation process, indicate that plaintiffs are anxious to attend mediation in order to talk directly with physicians and physicians often seek to attend mediation for the same reason: to have a conversation with the patient/family and explain what happened. However, attorneys tell physicians not to bother to attend because mediation is only about money and that the insurance company reps will be there to take care of that. So, physicians, in mediation and the rest of the med mal litigation process, are sidelined, not able to participate, even when they want to. This often leaves plaintiffs disappointed and angry, having lost yet another opportunity to talk to the physician and physicians watching and waiting.
    I’ve spoken to judges in the Superior Court in Rhode Island, which now has mandatory mediation in med mal cases. They state that, although the court order requires ALL parties to attend, defense attorneys come to the mediation session with an insurance company representative and without the physician, telling the judge that the physician doesn’t need to be there because it is only about money.
    Although it certainly doesn’t have to be only about money, this approach is understandable, given that it is often well into the litigation process when mediation occurs, with the parties and attorneys already well set into their adversarial roles. Patients/families often have first-hand information to share with healthcare providers, information that could improve healthcare processes and practices for the next patients. Patient safety could be addressed and improvements created. That doesn’t happen when the physician isn’t present, sending the clear signal that the mediation is only about money.
    There is a process that can be utilized long before litigation. That is collaborative law, which can be introduced immediately after possible medical error. It is a confidential process, involving the parties and their attorneys, which encourages open exchange between the parties, information sharing while it is still fresh, conversations about improvements in patient safety, restoration of trust and the possibility for healing of all parties. Because it is non-adversarial and based on openness and transparency, the collaborative law process continues seamlessly the healthcare philosophies of do no harm, communicate with your patients, and provide needed information to patients to ensure their good health. Also, because the collaborative law process is non-adversarial, even if the matter doesn’t settle and moves into litigation, the opportunity for open communication and continued trust has not been lost. Also, the parties play an active role in the discussions and decide the resolution that works for them. Patients/families have been heard and have an opportunity to continue to play a role in the delivery of healthcare and physicians are no longer the “second victim”. They have spoken, been heard, answered questions, brought about change, and helped heal themselves and their patients.

  • Marc Gorayeb, MD

    Duty, breach (negligence), causation, damages. Settlement at mediation implies negligence, even if there is no such admission by the defendant. Some of the issues remaining for mediation include apportionment of breach or causation, and damages. A party may mediate despite the implication of negligence because its cheaper than going to trial or risking a large jury award.
    In many cases, the dispute is whether there was negligence. Most physicians should not accept the implication of negligence if there was none. It’s not just a matter of pride; it is a matter of professional integrity. The solution to that problem is having a disinterested, objective expert opine on whether there was negligence. That does not yet exist in our system.

  • MillCreek

    Speaking as a healthcare risk/claims manager who has participated in scores of mediations, I generally do not go to mediation as the first step of resolving a case. First off, if the care is defensible and we can prove it in court, the physician likely will not consent to a settlement. If you are not looking to settle the case, mediation is pointless. Mandatory mediation requirements when neither side or only one side is prepared to settle is a waste of everyone’s time.

    Second, if we want to settle a case, it is far easier, quicker and cheaper to do it via direct negotiation with plaintiff counsel. Most cases that are settlement candidates are resolved this way.

    Third, mediation can be very, very helpful indeed if either side has client control problems, which are usually an unrealistic sense of the value or the merits of the case. I think there is a lot of value in having an experienced mediator tell the plaintiff that their case is worth closer to $ 75,000 rather than the $ 550,000 they are demanding. The same can certainly apply to the defense side as well. I have had many plaintiff counsel suggest mediation to me as the only means of getting their client to listen to reason.

    Finally, I always offer to my physicians the opportunity to attend the mediation and see what the process is like. Less than 10% take me up on that offer. Most of them tell me it is my job to handle this, and please let them know what the outcome is. I think it would be great if more did participate in the process.

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