Mediating Medical Conflicts

Voluntary mediation is especially well-suited for resolving disputes that arise in the context of health care provision

By Carol B. Liebman

Winter 2010

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The American health care system is an incubator for conflict. Patients and physicians exist in a setting where many people are involved in delivery of care, patients’ conditions change rapidly, decisions are complex, and there is often no “correct” choice. Time pressures, stress, and emotion all make communication difficult and frequently lead to conflict. Mediation, a confidential, voluntary process in which an impartial third party helps the participants negotiate their differences and make informed choices, is being used to resolve two very different kinds of health care conflicts: bioethics disputes, which most often arise around decisions to continue or end treatment at the end of life, and medical malpractice claims. A mediation approach also is being used in some hospitals to facilitate disclosure conversations with patients who have been harmed by medical care.

The general benefits of using mediation are now well known in the legal world. It is a process that allows parties and their lawyers—not judges or arbitrators—to control decision making and the shape of any resolution. Participants in mediation have the opportunity to discuss all issues important to them, not just those that are relevant to the legal claims. In addition they can speak in a less guarded way during mediation because the process is confidential. When mediation takes place early in the litigation process, some or all of the emotional and financial costs of litigation can be avoided. Early mediation also provides injured parties the opportunity to receive fair compensation relatively soon after harm.

Mediation offers special benefits in the health care setting, where stakes are high and
emotions can be overwhelming. Traditionally, when hospitals have been confronted with conflicts—between families and health care professionals or among the family members or within the health care team—about how to manage treatment decisions, they have called on bioethics committees to help seek resolution. Some bioethics committees act as consultants. Taking a quasi-adjudicatory role, they review the medical records, meet with physicians, other health care professionals, and the patient and family members and—applying bioethics principles of autonomy, beneficence, non-malfeasance, and distributive justice—recommend a course of action. Other bioethics committees have discovered the benefits of a mediation approach in which a bioethics mediator convenes a meeting of all stakeholders and facilitates a conversation with the goal of reaching a consensus. A major benefit of bioethics mediation is that it allows the family and the health care team to share the burden of painful and profound decisions about treatment at the end of life.

In medical malpractice cases, mediation provides a forum where both economic and non-economic goals of patients harmed by medical care can be realized. Research shows that when patients are harmed by medical error, they want to know what happened, why it happened, the implications for their health, how the problem will be corrected, and how future errors will be avoided. They are also, of course, concerned about the financial impact of the error, and they want an apology. Apologies can be offered during mediation because mediation communications, by agreement, statute, or court rule, are confidential. In addition, if either the physicians involved in the patient’s care or a physician with supervisory responsibility for patient care comes to the mediation table in malpractice cases, patients or their family members may learn for the first time exactly what happened to them or their loved ones in a way that they can understand.

In both bioethics and medical malpractice mediations, patients and family members may come to understand the complexities and uncertainties of medical care. This understanding may allow them to realize that often no one is to blame for a bad outcome. And in both types of conflict, mediation agreements can include provisions that a court could not order. For example, in a bioethics case, the agreement might include continuing life support long enough for relatives to gather or, in a medical malpractice case, a memorial lecture or staff training that gives meaning to terrible loss. Finally, in both types of mediation, the mediation process can encourage healing conversation.

Hospitals and physicians also are using a mediation approach to improve communications between the health care team and patients and their families when a patient has been harmed by medical care. Hospitals are required by regulation, ethical standards, and, in some states, by law to disclose “adverse events”—that is, injuries resulting from medical management—to patients. Adverse events may be the result of appropriate care but frequently result from preventable medical errors, many of them life threatening.

When an adverse event occurs, the trusting relationship at the heart of the physician-patient relationship is strained; when that event is the clear result of an error, the relationship is ruptured. And when an error occurs, not only patients and their family members but also health care providers suffer.

Too often physicians and other health care providers react to adverse events by distancing themselves from their patients. Rather than providing information and spending time with the patient, the members of the health care team—responding perhaps in part from a sense of failure, shame, or guilt and, in part, from fear of possible litigation—pull back and shut down communication at a time when communication is most needed. Poorly advised by lawyers, insurers, and risk managers, most physicians continue to say as little as possible after an adverse event and rarely apologize or offer compensation.

The tendency to close down communication after an error deprives patients and physicians of the sorts of healing conversations that they both need. In addition, hospitals and health care providers may miss the opportunity to learn things from the patient and family that might prevent future errors.

In the past few years some hospitals have begun to take a different approach. They encourage disclosure after an adverse event and, when appropriate, offer apologies and compensation. Because it can be difficult for physicians to talk to patients who have been harmed by their medical care, especially when that harm is caused by an error, some hospitals are developing teams of expert communicators to help plan and facilitate disclosure conversations and provide debriefing and emotional support to the health care providers. These communication experts use mediator skills to ensure that patients and physicians hear each other and that the concerns and fears of the patient and patient’s family members are recognized.

Trust is at the core of the doctor-patient relationship. When conflicts arise, that trust is damaged, causing distress for all. It is not easy to rebuild that trusting relationship following an error or a dispute about treatment, but mediation, with its ability to facilitate communication, can help.

This essay was reprinted from the recently published Sesquicentennial Essays of the Faculty of Columbia Law School.

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Illustration by James Yang