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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