“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.
But the study found “major challenges” remain for mediation to gain greater acceptance in malpractice suits. Key among them: lack of physician involvement. In none of the cases studied did a doctor take part in the mediation. This, the authors said, “deprives them and their patients of the opportunity for healing, understanding, forgiveness, and repair of broken relationships and failed communication.”
They also noted “[I]t is possible that plaintiffs would have been even more satisfied with the process had their physicians demonstrated respect and caring” by attending the mediation.
So why aren’t physicians participating?
“The reasons given by their lawyers were that the physicians were too busy or they wanted to protect the physicians from verbal attacks by the plaintiff. I suspect there may also be some concern about what the physicians might say during the mediation,” coauthor Chris Stern Hyman said in an interview.
Hyman, a former adjunct research scholar at the Columbia Law School and now with the Medical Mediation Group, notes that it’s likely attorneys are standing in the way. “The lawyers are usually the gatekeepers in determining whether or not their clients should participate in a mediation. My sense is that the attitude of the lawyers, who are litigators, is shared by their clients, the hospital leadership and the insurers. The defense litigators, who handle medical malpractice lawsuits at least in New York, for the most part do not seem as sophisticated about the benefits of participation in mediation as defense lawyers in other types of cases, such as employment.”
The authors cited research that found patients expect an apology after a medical error, and that most doctors want to oblige, but they—and their lawyers—refrain from doing so out of fear of legal liability. However, the confidentiality of mediation would obviate that.
Moreover, the absence of the physician “minimizes the chances that mediated discussion of medical errors by patients, families, and health care providers can foster learning that leads to improved quality of care,” according to the authors. They suggest that future research “might explore the connection between effective disclosure conversations and a health care facility’s willingness to participate in interest-based mediation of medical malpractice lawsuits given they require a similar commitment to communication among those directly affected by the events."
That’s something Hyman would be interested in exploring–but it would require a hospital or health system willing to cooperate fully. “We would be delighted to find willing participants, which means a hospital or health care system interested in full disclosure and interest-based mediation,” she says.