Mediation inMedical Malpractice

Jenny Jung & Kate Youd

Medical Malpractice: Prevalent & Expensive

• Over $3 billion/year is spent in medical malpractice payouts, averaging one payout every 43 minutes.

Settlement v. Judgment

Mediation for Medics

• Mediation is another vehicle for exchanging information about adverse events, giving an apology, and paying compensation.

• Mediation can be used as a process that transform an adversarial painful dispute into an opportunity where all parties reach an amicable and mutually satisfying result.

Benefits of Mediation in Medical Malpractice Claims

• Effective communication and preservation of relationship– Party control over decision making

• Confidential• Effective and cost efficient settlement agreements

Advantage # 1: Communication & Preserve/Repair Relationship

• Mediation encourages effective communication by engaging all the parties together prior to an adversarial trial.

• For the families, this can clear up unanswered questions, including causes of the injury. Many times, all that the families want are sincere apologies.

• 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 administration and lawyers, who are thinking ahead to what happens if the case goes to trial.”

• Effective communication leads to improved healthcare services.– Hospital representatives and healthcare providers

may learn about missed or ignored information that contributed to the harm or about ways that established procedures were ignored, and then make improvements to the system.

– While information may be eventually obtained in litigation, there is pressure not to change systems during litigation based on the thinking that a change may be an admission of liability.

Advantage # 2: Confidentiality

• All mediation sessions are confidential.– Mediation discussions are inadmissible if the

dispute fails to reach a settlement and goes to court.

• Confidentiality encourages more candid and less strategic communications.

• Apologies – Patients expect an apology after a medical error or

adverse event, and many physicians wish to apologize but feel constrained by fear of admission of liability. Because mediation’s confidential nature obviates this fear, apologies can be given without fear of legal consequences.

– An experienced mediator can coach both parties concerning the apology to ensure a productive dialogue.

– “Anecdotes abound of injured patients and their family members who have continued to seek care from-and even recommended to their friends-hospitals that apologize for medical errors and adverse events” (Columbia Law)

Advantage # 3: Efficient & Satisfactory Settlement

• Mediation settlement agreements can be more nuanced and creative than court decisions.- i.e., nonmonetary remedies in addition to monetary compensation, such as a promise to make health system improvements.

• Early settlements via mediation is also a faster way to compensate legitimately injured patients.

• Even if the mediation does not resolve the case, it may create enough momentum to lead to a settlement.

• 29 lawsuits against New York City Health and Hospitals Corporations (HHC Study) and 67 lawsuits against Non-profit Hospitals in NYC (MeSH).

• Time: Average time spent for both studies during mediation were 2.5 hours and 4 hours respectively to reach resolutions. This confirms efficiency of reaching settlements in comparison to litigation, which can take weeks to even years.

• Discovery: In both studies some cases were mediated and settled with minimal or no discovery. This suggests mediation’s advantges in financial and emotional savings.

• Participation and Satisfaction. The level of plaintiff participation was high in both studies (84% and 80% respectively).

Empirical Studies Show…

Challenges: Doctors’ absence• Doctors usually refuse to take part in the

mediation. – This could be a missed opportunity, as “plaintiffs’

level of satisfaction is expected to increase if their physicians demonstrated respect and caring” by attending the mediation.

Conclusion

• Mediation can have cathartic benefits for everyone involved in the process.

• To realize these benefits, attention should be given to bringing not just lawyers, but also patients, family members, and especially physicians to the mediation table.

We would love to hear back from you!

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study/profession and share your thoughts, ideas, and any personal experience relating to mediation!