Malpractice Mediation Lacks Physician Participation

HealthLeaders Media Staff, December 22, 2010

Using mediation to resolve medical malpractice lawsuits could reduce costs and ensure that procedures are changed in hospitals to prevent recurrences of the error that led to the lawsuit. Too often, however, that potential goes unrealized, according to the authors of a recent study.

“Change will require medical leaders, hospital administrators, and malpractice insurers to temper their suspicion of the tort system sufficiently to approach medical errors and adverse events as learning opportunities, and to retain lawyers who embrace mediation as an opportunity to solve problems, show compassion, and improve care,” according to the study published in the Journal of Health, Politics, Policy and Law.

Researchers looked at 31 cases from 11 nonprofit hospitals in New York City in 2006 and 2007 that went to mediation. About 70 percent of the cases settled either during or after mediation, for amounts from $35,000 to $1.7 million.

The case for mediation would appear to be compelling in medical malpractice cases because:

  • The outcome is under the parties’ control.
  • Plaintiffs can receive payment soon after the harm instead of waiting years.
  • Defendants do not have to pay outside lawyers to try the case.
  • Members of the medical staff do not have to prepare for discovery and a trial.
  • Even if mediation doesn’t resolve the case, it may create enough momentum to lead to a settlement.
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