Academic journal article The Review of Litigation

Apologize First; Mediate Second; Litigate ... Never?

Academic journal article The Review of Litigation

Apologize First; Mediate Second; Litigate ... Never?

Article excerpt

I. INTRODUCTION.........................................................................493

II. INADEQUATE SOLUTIONS TO THE PROBLEM OF REDUCING MEDICAL MALPRACTICE LITIGATION.....................................495

A. TORT REFORM: THE RIGHT ANSWER FOR THE WRONG PROBLEM 495

B. APOLOGIES AS A SHIELD......................................................496

III. APOLOGIES AS A SWORD.........................................................498

A. THE "DISCLOSURE-AND-OFFER"APPROACH..........................501

B. MEDIATION EXPERIMENTS AND THE UNIVERSITY OF MICHIGAN HEALTH SYSTEM BREAKTHROUGH..........................................504

C. THE PROOF IS IN THE PEW PROJECT......................................509

IV. SHAPING A SUCCESSFUL ALTERNATIVE DISPUTE RESOLUTION SYSTEM...................................................................................514

A. CREDIT GIVEN FOR PARTICIPATION........................................517

V. OBSTACLES TO MEDIATION....................................................520

VI. MOVING IN THE RIGHT DIRECTION.........................................523

VII. CONCLUSION: LITIGATE (ALMOST) NE VER.............................526

I. INTRODUCTION

In 1982, the band Chicago reached number one on the U.S. Billboard Hot 100 Chart with its rock ballad, "Hard to Say I'm Sorry."* 1 While some may argue it was the group's major key tonality, acoustic rhythm piano, and subtle use of vocal harmony2 that propelled the track to the top spot, others might suggest that the song became a hit because people identified with the difficulties inherent in offering a sincere apology. This is especially true in the area of medical malpractice, where a heartfelt "I'm sorry" is what patients and their families want most from those they hold responsible for a bad outcome, yet what those responsible are perhaps most reluctant to provide.

Even though patients may file medical malpractice lawsuits with the objective of receiving compensation for an adverse event that resulted from a healthcare provider's severe negligence, inadequate care, or perhaps plain bad luck, the reason patients sue is more closely related to their dissatisfaction with the physician's bedside manner, lack of communication, and absence of interpersonal skills, than it is based on financial gain.3 Patients are significantly less likely to file suit if they receive an explanation of what happened, why it happened, how the problem will be corrected to prevent future errors, and of course, an apology.4

This Article investigates the role of apologies within the realm of medical malpractice lawsuits-not only the role they play in and of themselves, but also how they facilitate open and honest conversations between patients and doctors, and lead to the resolution of claims through mediation instead of litigation. Part I of the Article discusses the inability of tort reform to reduce the number of medical malpractice claims and how the typical denial of wrongdoing by physicians and hospitals escalates conflicts with patients' and leads to more, rather than less, litigation. Part II discusses the power of apologies to defuse the conflicts that often lead to malpractice litigation, and examines two hospital systems that have implemented mediation programs which show that the future of medical malpractice is not in highly-publicized, drama-filled courtroom battles, but in quiet hospital conference rooms, where a timely explanation, a genuine apology, and appropriate compensation helps give patients the closure they need to move on. Part III discusses how hospitals could construct a system of alternative dispute resolution for malpractice claims by harnessing the power of apologies, the possible difficulties in implementing such a system, and recent developments suggesting that some medical providers are taking steps in the right direction.

II. INADEQUATE SOLUTIONS TO THE PROBLEM OF REDUCING MEDICAL MALPRACTICE LITIGATION

The power of apologies in de-escalating conflicts that lead to medical malpractice litigation is considerable and demonstrable, but the traditional solutions offered by those who want to reduce the volume of these claims (using a "deny and defend" approach in the hospital and courthouse and campaigning for tort reform in the statehouse) fail to bring this insight to bear. …

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