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Mediation successfully used for malpractice claims
Mediation is a voluntary, nonbinding proceeding being used more often as alternative to litigation.
The City of Baltimore made mediation of medical malpractice cases mandatory in September. In Georgia, the recently passed Mandatory Professional Malpractice Mediation Act goes into effect July 1 for all cases filed on or after that date.
Mediating rather than litigating medical malpractice claims is becoming more popular and, in many instances, has helped to successfully settle cases earlier and more satisfactorily for both parties. “This is the hottest topic right now,” according to Harris T. Bock, Esq.
Bock, who conducts approximately 100 mediations per year, is director of the Dispute Resolution Institute in Philadelphia. Recent changes in Pennsylvania have moved mediation to the forefront there. “Mediation is being favored by insurance companies, by the state agency Mcare that has responsibility for payment of certain obligations on their malpractice cases, as well as by institutions, such as health care providers. I think the locomotive of all of this is the problems that were presented by the increasing malpractice premiums, and this is thought to be somewhat of a solution to that,” he told Orthopedics Today.
In Philadelphia, Drexel University College of Medicine has developed and in March started using a medical malpractice mediation process. The first case was settled April 6. It follows a mediation model used by Rush University Medical Center in Chicago.
According to newspaper reports, Abington Memorial Hospital, located near Philadelphia, has taken part in two mediations in the last two years as part of a pilot project sponsored by Pew Charitable Trusts in Philadelphia. More are planned.
The Rush model
Rush University Medical Center is the health care provider with the greatest mediation experience. Gunnar B. Andersson, MD, PhD, the hospital’s senior vice president of medical affairs and chairman of the department of orthopedics, said the mediation process they have used since 1995 is highly “innovative” and helps patients, even though some may not get any financial award. Andersson is a member of the Orthopedics Today Editorial Board on the Basic Science and Research Section.
Rush’s general counsel, Max D. Brown, JD, told Orthopedics Today that approximately one-third of the 36 or so medical malpractice cases involving Rush each year are mediated. And although mediation represents significant cost savings per case — approximately 50% compared to comparable cases that go to trial — its benefits go beyond monetary measures.
“Mediation is all about trust and accepting our responsibility as an institution that we have injured a patient while they’re here,” he said.
Those who enter into mediation get their concerns heard by all involved, Bock said. “People who come to mediation come with the idea that they’re trying to get an issue resolved, not trying to win or lose. You come wearing the mediation hat, to some extent, and that hat is the hat of accommodation and resolution. So the polarity that exists in the courtroom is the antithesis in the mediation room.”
During mediation, Brown said, “We’re trying to communicate with each other … and as a consequence I think we are able to reach better conclusions. The doctors like that because doctors are by their nature … healers. … It’s just a different mindset.”
Rush has trained 25 to 30 mediators, highly qualified litigators, to be involved in the process. Plaintiffs are invited to choose both a plaintiff trial lawyer and a defense trial lawyer to act as co-mediators. The mediators facilitate the mediation, which is done in two rooms, one for meetings and another for breakout sessions, and held at a neutral site.
Shorter process
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After introductions, each side gives a brief summation, typically with the plaintiff’s attorney presenting first. Then breakout sessions begin. Mediators may go between both rooms to gather information and discuss facts. “We talk about the value of the case and the strengths and weaknesses of those cases. We go back and forth until we reach a conclusion,” Brown said. Settlement takes place in the main room, after which Brown makes an apology on behalf of the hospital.
Most cases are settled within four hours. For cases that are not settled, whatever is said during mediation is not discoverable nor can it be used during a trial.
“I think this works well because the people are so well trained and experienced in litigation,” he added. “It’s almost as if all the strengths, all the characteristics of a trial are turned on its head. … Instead of posturing or indirect communication to third parties, you are directly communicating with each other. You want to get to trust instead of ‘Gotcha.’”
Emphasis on quality
Drexel’s program, run by Health Care Resolutions in Conshohocken, Pa., focuses on quality as a way to provide evidence-based medical care and reduce malpractice risk, according to Medical School Dean Stephen K. Klasko, MD. “Beyond the mediation program, we started a best practices attestation program where we asked all of our doctors to attest to certain best practices,” he told Orthopedics Today.
Whether the mediation is for lawsuits already filed or is used soon after a problem is reported or a complaint is filed, “when something should be resolved we resolve it to the best of our ability as quickly as we can,” said Tobey Oxholm, Drexel College of Medicine’s general counsel.
The first dozen cases lined up for mediation at Drexel were those scheduled for trial in the next three to four months.
Twelve more cases, scheduled for trial in approximately one year, will be mediated next and so on. Cases not yet set for trial, such as for events that just happened or where a writ of summons was recently filed, could also be mediated if sufficient information is known. In cases where there is not a suit yet but lawyers have been selected, “we may get the lawyers together through the mediators. … We’ll try to use the mediation to focus in a voluntary way on the depositions or interrogatories that really need to be answered — and hopefully short circuit the whole process.”
Drexel’s first mediation case, involving a patient’s death during surgery four years ago, was settled in late March after eight hours of mediation. It started with the plaintiff’s counsel and family expressing their anger about the situation. According to Oxholm, the family left the mediation table feeling good about the process and with a sense of closure because they got to hear, possibly for the first time, the doctors say how sorry they were for what happened.
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“The rules of engagement are different in the mediation than they are in the trial,” Klasko noted. For example, plaintiffs are told, where appropriate, about any policy or safety changes made at the hospital as a result of their case.
Bringing parties to the mediation table is not always easy, according to Oxholm. Several parties may be involved, such as multiple doctors and their individual insurers, representatives from different hospitals, and Mcare representatives, all of whom have to agree to mediation. “Right now I’m having a tough time persuading some insurance companies representing other defendants that this is a good idea,” he said.
At Rush, 90% of mediated cases settle and a few of the other 10% settle a few months afterwards, Brown said. But, sometimes patients or their families want their day in court. They are “so vested in this, not so much for the money, but for other valid reasons. They may just be bitter. In other cases, we’re the problem because perhaps we just don’t see the value of the case,” he said.
Rush’s program has been so successful that the medical center is even considering applying principles of mediation to ethical issues, should the need arise, according to Brown.