Medical malpractice commentary: Litigation vs. mediation

March 1, 2008

Dr. Stress has lost three medical malpractice cases in 10 years. All have resulted in hundreds of thousands of dollars in payments, mandatory reporting of his losses to the National Practitioner's Data Bank, increases in his insurance premiums, and significant loss of time away from his family and patients while trying to defend these cases.

Key Points

Dr. Stress has lost three medical malpractice cases in 10 years. All have resulted in hundreds of thousands of dollars in payments, mandatory reporting of his losses to the National Practitioner's Data Bank, increases in his insurance premiums, and significant loss of time away from his family and patients while trying to defend these cases.

Most importantly, the losses have taken a devastating emotional toll on him. Dr. Stress feels he cannot go through another similar litigation.

A fellow physician advises him to have all incoming patients sign forms mandating mediation as an alternative to litigation. What is this all about?

It is now estimated that 150,000 deaths and 30,000 serious injuries are caused by physician and hospital negligence in the United States each year.

Medical error is not purposeful or reckless actions that are intended to harm patients. Medical error is most commonly represented by simple human mistakes.

These human errors lead to litigation through the current system of medical malpractice.

Litigation

The number of cases of medical malpractice continues to rise with each decade. Despite this, tort litigation 1) does nothing to deter physician negligence; 2) clearly has a detrimental effect on the patient-physician relationship; 3) has high emotional and financial costs for all litigants; and 4) in many ways, is a procedurally inefficient, cumbersome and time-consuming process.

In addition, many legal educators feel that the current medical malpractice tort-based litigation system does not adequately address compensation for many patients injured due to negligence. The current litigation-based system also does not lead to encouragement of quality improvement.

It should also be noted that litigation often does not resolve the issue at the root of the dispute. Litigation generally continues for years, yet the central points of conflict are not necessarily addressed.

Disputes between patients and healthcare providers often involve trust issues and miscommunication. These issues can lead to recurring disputes and additional malpractice claims.

Mediation

Mediation as a method of alternative dispute resolution solves or lessens many of the problems associated with litigation.

Mediation costs less money, requires less time, reduces court caseloads, actively engages the parties and potentially uses fewer resources.

Litigation virtually destroys the physician-patient relationship. Due to its adversarial nature, litigation tends to accelerate the deterioration of relationships rather than helping to rebuild them. Mediation encourages cooperation rather than adversity.

Since mediation can maintain physician-patient relationships in a dispute, it is particularly appropriate when 1) the parties wish to preserve a continuing relationship; 2) when the dispute is primarily caused by poor communication between the parties; and 3) when, in complex cases, a creative solution is required.

In these situations, mediation facilitates communication between the parties.

Simply by communicating via the mediation process, the parties have a chance to come to a mutually acceptable solution that is outside the scope of resolution that would occur from litigation.

Obstacles to mediation

Since mediation seems to resolve so many of today's medical malpractice litigation-induced difficulties, why has it not become a more popular system?

The obstacles to mediation appear to be related to uncertainty about confidentiality in some jurisdictions.

Since mediation is a communication-based system and does not involve mandatory acceptance by either party, parties are often concerned about the confidentiality of their statements made during the process.

Such concerns can cause both physicians and patients to be reluctant to cooperate, for fear that their comments may be used against them in a later court proceeding.

If the parties believe that the mediator or opposing party will disclose or be compelled to disclose statements made in mediation, significant stifling of communication necessary to promote information flow will occur.

State approaches to mediation

Some states have adopted some form of mediation process. Unfortunately, most states acknowledging mediation as an alternative to litigation have different requirements and standards for these programs.

Even requirements to be a mediator vary from state to state.

For example, Florida has specifications for mediators; other states have minimal requirements.

Michigan is unique in that its mandated mediation program requires a panel to perform healthcare dispute mediation. The five-person panel is made up of both lawyers and healthcare professionals who will hear 15 minutes of testimony from both plaintiff and defendant attorneys. If both parties accept the mediation evaluation, the case is settled by mediation.

What's a doctor to do?

Though Dr. Stress would be less stressed if he were able to mediate his physician-patient issues, he would be wise to seek legal advice as to the benefits of mediation in his jurisdiction.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

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