Mediation: Better Resolution of Medical Malpractice Claims

by Hon. Robert L. Harris, Sr. (Ret.) and Mark E. Rubin, Esq.
Ramifications, December 2003 edition

When a physician finds out that a medical malpractice claim has been filed, it is typically an extremely emotional, heart wrenching experience.

When a lawsuit alleges that proper care was not given and that harm was done, there is often a feeling of a betrayal of trust. The physician thought she had a good relationship with this patient who has now turned on her. There is a hope that if the physician could only talk to the patient this nightmare would go away. Talking to the patient would allow the physician to explain that she did her best and that the outcome is not what either had expected. The physician might even want to say that she is sorry that the patient is not well and express compassion for the pain the patient and her family may be suffering without admitting negligence.

Once a claim is filed, instead of having an opportunity to talk with the patient, the physician receives advice from his insurer and attorney that he should not speak to the patient or anyone else about it. Thus, the physician is thrown into an adversarial system in which legal attacks are defended on legal grounds. Experts for both sides then reconstruct what the physician lived through based on the cold reality of records.

Of course, patients go through emotional crises of their own surrounding the filing of a claim and as they go through the litigation process. Patients are also advised not to communicate with the physician while the claim is pending.

Communication in Mediation
The litigation process discourages communications other than those between the parties’ respective lawyers. Physicians and patients communicate in the form of answers to questions, either in interrogatories, depositions or at a hearing. Instead of talking, they testify.

In mediation, the reverse occurs in that no one testifies, but everyone talks. In fact, a significant part of the mediation process is known as storytelling. This is facilitated by a mediator who seeks to create a space in which the physician and the patient have a full opportunity to speak and, most importantly, to listen to each other. Each side has the opportunity to “acquaint the other party with his suffering”. Most mediators who handle medical malpractice claims have moving stories of mediations in which communications between a physician and a patient have been a significant factor in resolving a claim short of trial.

Mediation is not a panacea for the problems a physician faces as a result of a malpractice claim. However, it can be a much more humane and effective means of resolving a claim than a trial precisely because it presents opportunity for direct communication between the physician and patient. (Not all physicians whose cases go to mediation avail themselves of this opportunity.) Mediation also enables a physician to understand more fully the litigation process, to evaluate the risks of going to trial, and to participate more meaningfully in the discussion of whether or not to settle the claim. That is, the mediation process provides information that serves as an informed basis for decision-making.

It is often said that mediation takes place in the “shadow of the law”. This means that both parties are seeking to understand and to persuade the other party of their best estimate of what the trial result is likely to be. Mediators work in this context by asking pertinent questions in the course of mediation and conveying information so that all parties understand the risks of trial. A realistic appreciation of the risks for both the patient and the physician is what drives the negotiation. No matter how well educated and trained a physician may be, his field of expertise is rarely the legal system.

In discussions with his counsel and the mediator, the physician will be able to address any interests he may have in regard to the claim. For example, confidentiality is a very important interest for many physicians. While the National Practitioner Data Bank and the laws of the Board of Medicine make it difficult to assure total confidentiality, with mediations, there are certain aspects of the matter which can be kept private and out of the newspaper. On the other hand, once a case goes to trial, the case becomes a matter of public record and details of it are readily accessible.

The Process of Mediation
With this background, it is useful to describe the mediation process itself and the role of the parties and the mediator.

Mediation is, in essence, a facilitated negotiation. The mediator is not the decision maker; the parties are the decision makers. In medical malpractice mediations, the physician may be the ultimate decision maker depending on the terms of his insurance coverage, or the insurer may be the final decision maker. Likewise, patients are the other ultimate decision makers, although in most situations, patients rely on the recommendations of their counsel. Mediators do not impose a resolution and unless both sides agree to settle the claim, there is no resolution.

Mediations are appropriate when both parties wish to make a good faith effort to settle the claim. Coming to mediation with the sole intention of persuading the other party that they have no case and without anything to offer is a recipe for failure no matter which side adopts this attitude.

Mediations typically begin with a mediator explaining the process and its ground rules. He will ask the parties to sign a mediation agreement. This agreement obligates all participants to keep the communications made and the documents prepared for mediation confidential. A final agreement reached in mediation may remain confidential if that is stipulated as part of the agreement.

Each party then has a full opportunity to tell his story regarding the claim. Lawyers can do all or part of the talking or parties can do all or part of the storytelling. It is a matter of choice between the lawyer and her client. This is not an examination or cross-examination under oath but rather an opportunity to talk. Typically, the attorneys outline the case stressing the strengths of their claim or defense. The patient and the physician, if they so choose, can then talk about their perspectives on the matter.

In most medical malpractice mediations, the parties then divide into caucuses and move to separate rooms with the mediator traveling between them. Caucuses are confidential in that the mediator keeps confidential those matters so designated by the participants in the caucus. In a caucus, the mediator explores the strengths but mostly the weaknesses of each party’s case as well as any interests the parties wish to express. The discussion eventually turns to the terms of a possible settlement. Negotiation positions are expressed and conveyed by the mediator

If the matter is settled, an agreement is drafted and signed. This typically resolves the case subject to the finalizing of any necessary documents such as releases and payment or the approval of a court in the event a death or injury to a child is involved.

Mediations result in settlement approximately 85% of the time. Compared to the time required for depositions and trial, mediation typically requires less time out of the office for a physician. When settlement is not reached, the parties have not given up any rights, and they may proceed through the litigation process as if the mediation did not occur. In sum, there is everything to gain from attempting to settle in mediation and nothing to lose other than the cost of the mediation itself. This cost is generally minimal in comparison to going forward with litigation.

Arbitration
A quick word about arbitration is in order. Arbitrations are adjudications just like trials. Instead of a judge or jury, the case is submitted by mutual agreement to an arbitrator. Sworn testimony and documentary evidence is taken, parties and experts testify, and a decision is made. (If the parties agree before arbitration that it is to be a non-binding arbitration, they may agree to simply use it as an advisory opinion.)

Arbitrators are typically chosen by agreement of the parties. Arbitrators may be retired judges, lawyers who are deemed neutral or anyone else the parties choose. It is important to note that there are very limited grounds for appeal of an arbitrator’s decision.

In sum, arbitration is private, informal litigation with all of its attendant costs plus the additional cost of paying the arbitrator. It does not provide the opportunity for communication or participation that mediation does. It does, however, provide a final decision.

DIR Program
Physicians who were insured by the Doctors Insurance Reciprocal now find themselves in a very difficult situation. They have no insurance coverage and are paying their attorneys and expert witnesses out of their own pockets. The Medical Society of Virginia, the Virginia Association of Defense Attorneys, the Virginia Trial Lawyers Association and The McCammon Group, which provides mediation services, have agreed upon a protocol and a reduced fee for mediations of claims against physicians insured by the Reciprocal. The hope is that these claims can be dealt with at a very early stage with the least expenditure of costs and expenses by all parties. Mediation provides an effective means to this end.

In Closing
Mediation provides physicians with an efficient means to resolve claims in which they have a risk of losing if the case goes to trial. The process provides the physician with an opportunity to hear directly from the patient and to speak directly to her. In addition, the physician can assure that his personal interests are considered and that he can participate meaningfully in the resolution of the claim. These opportunities are not available in a trial.

The litigation process is a painful one for all concerned. Mediation is an alternative that can help physicians resolve claims and preserve some semblance of their own humanity while continuing to care for patients.