Mediation effective, but many skeptical

Mediation can not only reduce the costs of malpractice litigation, but also 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, according to a recent study. However, too often that potential goes unrealized, because doctors and hospitals are often reluctant to participate.

Barriers put up by doctors, hospitals, and their lawyers often stand in the way of mediation being employed effectively, says author Carol Liebman, JD, a professor at the Columbia Law School in New York City. The study was published in the Journal of Health, Politics, Policy and Law.¹

Her study found that mediation can not only reduce the costs of litigation, but it also has the potential to offer closure to plaintiffs and ensure that procedures are changed in hospitals to prevent recurrences of the error that generated the lawsuit. However, too often that potential goes unrealized, she says.

"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," Liebman says.

Liebman, an internationally recognized expert on mediation and negotiation, directs the Law School's Mediation Clinic. Co-author Chris Stern Hyman, JD, was formerly an Adjunct Research Scholar at the Law School.

The study looked at 31 cases from 11 nonprofit hospitals in New York City in 2006 and 2007 that went to mediation. About 70% of the cases settled either during or after mediation, resulting in monetary settlements from $35,000 to $1.7 million.

On the surface, Liebman says, the case for mediation would appear to be compelling in medical malpractice cases. She cites these reasons:

• 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 does not 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, Liebman says "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," she says. "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, Liebman says. 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, Liebman says.

"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.

Reference

1. Hyman CS, Liebman CB, Schechter CB, et al. Interest-Based Mediation of Medical Malpractice Lawsuits: A Route to Improved Patient Safety? Journal of Health Politics, Policy and Law 2010;35:797-828.

Source

• Carol Liebman, JD, Clinical Professor of Law, Columbia Law School, New York City. Telephone: (212) 854-4291. E-mail: cliebman@law.columbia.edu.