Mediation and Medical Malpractice: Why Plaintiffs, Hospitals and Physicians Should Be at the Table
Hyman, Chris Stern, Dispute Resolution Journal
The findings of research projects using mediation to resolve medical malpractice disputes show satisfaction with the process and an earlier conclusion than litigation.
While the national debate about how to improve healthcare continues, hospitals and healthcare providers are under increasing pressure to improve patient safety and communicate more effectively with patients and families. They are also being asked to disclose adverse events and medical errors in the hopes that this will reduce the number of malpractice claims. For
example, the University of Michigan Health System has a medical error disclosure program that includes a series of timely conversations with the patient after an adverse event or medical error, an apology, and an offer of fair compensation. 1 This program has substantially reduced the number of claims against the university and its liability costs. The University of Illinois Medical Center at Chicago has a similar program through which it has been able to identify and implement system improvements and increase the reporting of adverse incidents.2
Mediation is another vehicle for exchanging information about adverse events, giving an apology, and paying compensation. For the past nine years, my colleague, Carol Liebman, and I have been studying ways in which mediation and mediation skills can resolve healthcare disputes and at the same time improve patient safety and the quality of care.
The benefits of using mediation are well known to lawyers: a prompt, less expensive resolution; party control over decision making; and settlement agreements that are more nuanced than court decisions and can include non-monetary remedies in addition to monetary compensation, such as a promise to make health system improvements. In addition, because mediation communications are protected by confidentiality, the process encourages more candid and less strategic communications.
In the healthcare setting, the exchange of communications in mediation, as in error disclosure programs, provides additional benefits. Hospital representatives and healthcare provid ers may learn about missed or ignored information that contributed to the harm or about ways that established procedures were ignored, and then make improvements to the system. While they learn this information eventually in litigation, there is pressure not to change systems during litigation based on the thinking that a change may be an admission of liability.
A nother benefit is that patients and family members can learn, often for the first time, exactly what happened to them or their loved ones and begin to understand the complexities and uncertainties of medical care. These are the kinds of communication that allow healing for both patients and physicians and can lead to a repaired relationship.
Litigation, by contrast, is often the result of poor com munication between and/or among patients, physicians, and hospitals after a medical error. Physicians and hospitals rarely are open about what happened.3 Physicians and hospitals have been counseled by lawyers to believe that to say as little as possible is in their best interest when research suggests just the opposite: litigation is more likely if patients and their families feel they have not received answers to their questions.4
My colleagues and I have conducted three research projects using mediation to resolve healthcare disputes. The first, a demonstration project in Pennsylvania in 2002 funded by the Pew Charitable Trusts (Pew Demonstration), was partly a response to the Institute of Medicine's study suggesting that as many as 98,000 patients a year die in hospitals as a result of medical errors.5 The project focused on using mediation skills to enhance physician and hospital communication with patients and families after an adverse event.6 Interestingly, at the time this project took place, Pennsylvania had just enacted the first statute requiring hospitals to disclose adverse events to patients. …