Medical mediation: Bringing everyone to the table

Patients and providers both want a health care system that ensures the delivery of safe, effective care. However, when errors, systems failures, or unanticipated outcomes occur, the existing process of resolving liability claims—that is, through litigation—may actively discourage discovery or even discussion of the root causes of these problems. The concept of alternative dispute resolution (ADR) has been introduced as an adjunct or alternative to traditional litigation. ADR includes a panoply of mechanisms designed to improve communication and reach resolution of disputes outside of the courtroom. ADR techniques may be implemented before, during, or after litigation.

The four categories of ADR—mediation, arbitration, negotiation, and collaborative law—differ in terms of the degree of privacy and level of autonomy they afford to the disputants. Furthermore, decisions derived through various methods of ADR differ in their binding nature. This article focuses on the form of ADR that has been applied most widely in medical liability lawsuits—mediation.

Shortcomings of current model

Traditional resolution mechanisms are inefficient. They are resource intensive, impede the flow of information between interested parties, and create an adversarial environment between physicians and patients. According to one study, the length of time required to resolve legal claims was twice as great for litigated versus non-litigated claims. Although most court decisions ultimately favored the physician, that resolution came only after months or even years of litigation.¹

Traditional litigation tends to lock parties into positions that they then feel forced to defend. Intractable positions destroy communication regarding the relevant issues. Arguments over “who” is right rather than “what” is right further damage the physician-patient relationship and provide little benefit to either party.

Being sued can have a significant impact on physicians and their families. Lost productivity, anxiety, diminished professional reputation, financial costs, and increases in liability and malpractice insurance are some of the hardships defendants typically experience in these situations.¹

These stressors could be reduced if the process of resolving claims were swifter and encouraged greater transparency. In the aftermath of an adverse event, patients and their families often are confused and angry. Few are immediately inimical. Most want basic information about the event, an understanding of how it occurred and how it might be prevented in the future, and an apology that reflects recognition of their loss.^2,3 Physicians are given little training and few tools to engage in such conversations. Instead, health care practitioners have been counseled that open disclosure can lead to litigation. Those who try to communicate may say too much too early. They may ultimately be punished for their collaboration with and concessions or apologies to the opposing party, as these actions are all perceived to be an acceptance of personal responsibility for negative outcomes. When these barriers to open communication arise, litigation may seem like the only recourse.

However, the stifling of communication that occurs due to fear of litigation ultimately has a detrimental effect on patient safety. Up to one-quarter of physicians reported having seen an error in the previous year. Among them, 60 percent believed that a similar error was very or somewhat likely to occur at the same institution during the next year.⁴ This lack of communication often leads to stagnation in patient safety improvements.

Projected benefits of ADR

It is in this context of disjointed communication that mediation and other forms of ADR may provide the most benefit. Mediation augments direct communication between parties by introducing a neutral third party, a mediator, who facilitates negotiations. The mediation process addresses barriers to communication by encouraging information sharing, mitigating high emotions, promoting collaboration, and fostering trust between parties.⁵ Patients often favor mediation because it provides an opportunity to share their feelings and concerns and obtain relevant information.⁵ Physicians also appreciate the opportunity to draw the distinction between bad medicine and bad outcomes and to express their frustrations with being sued.⁶ By improving communication, the enhanced relationship between patient and provider may help both parties potentially avoid or minimize the impact of lawsuits.⁷

Mediators do not dictate an outcome; rather, they help both parties understand their motivations and elucidate the events and influences leading up to the incident. They help parties develop and evaluate new options for resolving the issues at hand, tailoring the solution to the specific needs of both parties, and broadening the possible outcomes beyond the linear constraints of the litigation process. The findings uncovered through mediation are non-binding unless parties reach an agreement. Satisfaction among plaintiffs and defendants in mediated cases is approximately 90 percent.⁸

Once an event is disclosed and mediated, a more open discussion may follow that allows health care providers to learn from and reduce future medical errors. The changes that occur as a result of these experiences can ultimately improve patient safety.

Models for mediation

In 1995, Rush Medical Center in Chicago, IL, developed a prototype for ADR in response to the rapid growth in legal costs and unpredictable rising jury awards in malpractice cases. The Rush model features a mediation agreement, mediation conferences, and, most notably, co-mediators, including a lawyer who traditionally would represent a plaintiff in a medical liability case and a lawyer who would traditionally defend these cases.^9,10

In the first five years of the program, 55 cases spanning errors in medication, diagnosis, and treatment were mediated. More than 80 percent of the cases that underwent mediation were resolved within one year of the lawsuit being filed and within three to four hours of starting mediation.^10,11 The mediated cases were resolved in half of the time in which non-mediated cases in Cook County were settled or came before a jury.¹¹ Though payouts were lower, patients were willing to accept the awards because they were received quickly.¹⁰

Another model, the Pew Demonstration Mediation and ADR Project prototype, was implemented in four Pennsylvania hospitals in 2002, including a large, decentralized network of urban teaching and suburban hospitals with more than 2,500 staffed beds and a suburban community teaching hospital with approximately 500 beds. This model focused on equipping physicians with mediation skills by encouraging physicians to learn communication skills for disclosure conversations; providing experts to help plan, conduct, and debrief disclosure conversations; and using mediation to settle potential claims.² Mediation settlements included provisions that met patient and family needs, such as ensuring that policies or procedures were changed to prevent similar errors or adverse events from occurring again. The parties were encouraged to explore both monetary and non-monetary solutions, whereas court proceedings typically result only in judgments.¹² Although only two cases were mediated in this demonstration project, it successfully showed that the apology and change in practices to avert future errors were the most important elements of the settlements.

Current role of ADR and future implications

ADR has been demonstrated to have a positive impact on physician-patient relationships, improve the efficiency of settlement proceedings, reduce the costs of resolving claims, enhance the confidentiality of proceedings, and encourage improvements in patient safety.

Despite these benefits, multiple unresolved issues and challenges to implementation remain. ADR payments made on behalf of physicians must be reported to the U.S. Department of Health & Human Services’ National Practitioner Data Bank (NPDB). This mandate increases physicians’ willingness to go through the traditional legal process, which tends to favor the physician defendant.⁵ Hence, the impact of reporting must be weighed against the benefits of ADR and revisions of the NPDB requirements should be considered.

Some discomfort exists surrounding the introduction of mediators to the conversation. Mediators do not have the same authority as judges and cannot compel the release of information or impose the results of the decision, thus necessitating the full compliance of both parties.⁵ Mediators may find it difficult to navigate conversations on complex medical and health systems issues; however, with the advent of specialized mediators, this problem may become less of an issue. In fact, this mechanism may be superior to the current system that relies on lay jury members to come to a consensus on these complex issues.

Some courts, for example those in North Carolina, now require “compulsory mediation” before any case can be tried. This policy maintains that mediation is an adjunct to, not a replacement for, litigation. However, this model of mandatory mediation has been demonstrated to be less effective than voluntary mediation, with rates of success measuring 23.⁷ percent and 90 percent, respectively.^8,13 This discrepancy likely reflects the fact that the greatest strength of mediation and ADR in general is its flexibility in meeting the unique needs of each case. Different systems have pioneered various forms of mediation, for example, by court mandate or by employee or department head training in conflict management. The success in implementation of these programs remains to be seen.

An understanding of ADR in comparison with traditional litigation methods will enable physicians to choose the most appropriate mechanism of resolving for each situation. This understanding of the processes of ADR will empower physicians to better communicate in difficult situations and improve their strategies for resolving malpractice allegations.

Acknowledgment

The author acknowledges the assistance of Jerry P. Roscoe, an arbitrator and mediator of health-related disputes, in the preparation and editing of this article. Mr. Roscoe is affiliated with JAMS, The Resolution Experts. He may be contacted through www.jamsadr.com/roscoe/.

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