New York, Dec. 13, 2010
—Using mediation to resolve medical malpractice lawsuits offers many benefits, but barriers put up by doctors, hospitals, and their lawyers often stand in the way of it being employed effectively, a study co-authored by Columbia Law School Professor Carol Liebman
The study found that when used, mediation could not only reduce the costs of litigation, and has the potential to offer closure to plaintiffs and ensure that procedures are changed in hospitals to prevent recurrences of the error that sparked the lawsuit. However, too often that potential goes unrealized.
“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
Liebman, an internationally recognized expert on mediation and negotiation, directs the Law School’s Mediation Clinic. Co-author Chris Stern Hyman was formerly an Adjunct Research Scholar at the Law School.
Mediation is where an impartial third party helps both sides in a dispute negotiate a mutually acceptable resolution. The parties are not required to settle and can return to litigation. However, all mediation sessions are confidential and what is discussed is inadmissible if the dispute goes to court.
The study 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, resulting in monetary settlements from $35,000 to $1.7 million.
On the surface, 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 the mediation doesn’t resolve the case, it may create enough momentum to lead to a settlement.
In spite of those benefits and the fact that many of the mediated cases settled, the study found “major challenges” remain for mediation to gain greater acceptance in malpractice suits.
Most significantly, in none of the cases studied did a doctor take part in the mediation. The study authors view that as a missed opportunity, noting “it is possible that plaintiffs would have been even more satisfied with the process had their physicians demonstrated respect and caring” by attending the mediation.
Defense lawyers often cited the doctors’ work schedules to explain their absence. Others did not want to subject the doctors to being verbally attacked by the plaintiff. This “deprives them and their patients of the opportunity for healing, understanding, forgiveness, and repair of broken relationships and failed communication,” the study concluded.
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.
“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,” according to the study.
The absence of doctors in mediation also limits the ability, the authors write, for doctors and hospitals to learn from the medical errors and improve the quality of care.
Liebman co-authored the study with Chris Stern Hyman of the Medical Mediation Group; Clyde B. Schechter of the Albert Einstein Medical Center; and William M. Sage of the University of Texas School of Law.
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