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Smoothing Legal Rough Waters with Mediation
By Richard J. Pawl, MD, JD, FACEP, Associate Professor of Emergency Medicine, Department of Emergency Medicine, Medical College of Georgia, Augusta.
Editor's note: The format of this article deviates somewhat from the usual style of footnotes sustaining the assertions of the article, because the purpose of this essay is to provide an introduction to alternative methods of dispute resolution in the healthcare field, which will be further examined in future articles. The author takes an editorial approach to the topic, followed by an exemplary example of what one innovative institution has developed to manage a selection of their medical malpractice suits to provide a taste of what can be done when parties have open minds and are motivated to expedite a resolution to litigation outside of the traditional malpractice suit.
Many physicians' first encounter with a formalized dispute resolution process occurs when they are first sued for a medical malpractice action. Given that the traditional malpractice action offered by our civil justice system is, by its nature, an adversarial approach to resolving allegations of medical malpractice, it is no wonder that this experience inevitably leads to a very dysphoric experience for the physician. One needs only to have read the initial complaint in a filing for a medical malpractice action, where the defendant physician is described as what seems to be the most negligent physician who ever existed prior to that point in time. Being in the "hot seat" during one's first deposition as a defendant is an experience that is seared in one's memory forever, as the defendant is raked over the coals as he or she explains what happened during the patient encounter where the alleged malpractice occurred. However, just as the defendant physician resigns himself or herself to the inevitability of the malpractice action, it becomes clear that the plaintiff's attorney will have to prove to a judge and jury the allegations asserted against the defendants-often not an easy task even for experienced plaintiff attorneys, and certainly always an expensive task for plaintiffs and defendants alike in terms of money and the time invested in the action. But once a malpractice action has been filed, there may be alternatives-couched in the category of settlement discussions-that offer a more timely, less expensive, and more satisfactory resolution. An example of such an alternative will be discussed below.
In areas of dispute within the healthcare arena outside of malpractice, alternative and formalized methods of dispute resolution have been used successfully. A common venue for such formalized processes occur when medical institutions offer formalized mediation processes to patients, their family members, and the patient's healthcare team members when ethical, cultural, and religious beliefs are in conflict in situations such as end-of-life decision-making. To be sure, most disputes-if they are really disputes at all-are resolved successfully in an informal fashion. However, there are times when interested parties have such conflicting interests and values that only a formalized process of resolving the differences between parties would have any hope for resolving the issues. Most typically, the resolution process offered is mediation, where the parties involved are guided to resolving their own problems with a trained mediator (or mediators) whose only role is to facilitate the parties into coming up with their own solutions. What is unique about mediation, as opposed to other formalized forms of dispute resolution, is that the mediator is powerless to impose any decisions upon the parties. If mediation fails, and disputes are still present, parties may still have to resort to the formalized, adversarial process of the lawsuit, but if the parties arrive at a settlement of their differences, they have complete ownership in their solution. Mediation offers a more comfortable and empathetic approach to solving problems between parties that may still need to relate to each other after a dispute has been resolved, such as family members and a patient's healthcare team.
Another process that has been crossing over from the financial service arena into contracts with independent contractor emergency physicians is that of the mandatory arbitration clauses that are found more frequently in contracts between emergency service corporations and their doctors. This author cannot state unequivocally that it is an industry trend, but from personal experience over the past two decades, I have seen an increasing frequency of contracts that contain clauses that require the parties to seek resolution of any disputes about the contract from an arbitration process rather than a civil contracts litigation approach.
Fortunately, most emergency service corporations and emergency clinicians will often resolve any issue amicably without a formalized process, even when the resolution is merely parting company under the terms of the contract. But the fact that most of these disputes are resolved without resorting to arbitration begs the question as to how much a physician who has signed such a contract really knows about the process of arbitration. If a contracting physician ends up having to resolve a contract dispute via arbitration, does that physician know what to expect from the process, and what are the advantages and disadvantages of that process for his or her interests?
A more detailed discussion about alternative dispute resolution methodologies used in the healthcare arena can be deferred to more in-depth reviews of each method. But to exemplify how one such methodology, co-mediation, has been successfully used in the process of settling malpractice suits, a thumbnail sketch of Rush University's Co-mediation Program will be discussed; space precludes a full description of the Rush process.
As of 2007, Rush University Medical Center in Chicago is a tertiary care academic facility that operates approximately 900 beds, and has some 2,000 members on its medical staff. At any given time, Rush is a defendant in roughly 150 medical malpractice suits, with an average of 40 new cases being filed with Rush as a defendant each year. About 50% of the malpractice claims filed against Rush are voluntarily dismissed by the plaintiffs after about four years. About one third of the cases filed against Rush are considered by their legal analysts to be completely defensible. About one case every other year is considered to be indefensible. The remaining cases represent cases that are less clearly defined and may have aspects favorable to either the plaintiffs or the defendants.
Given that pursuing a traditional approach to malpractice litigation towards trial can take up to 3-5 years in the Cook County jurisdiction (Chicago), and that huge damage awards were appearing more frequently in the early 1990s, Rush began looking for alternatives to being forced into the trial process for the resolution of select malpractice suits that would offer them more control over the results more quickly. What emerged was the Rush Co-Mediation Program.
The plaintiff first selects co-mediators from a bank of mediators who are experienced plaintiff or defense medical malpractice attorneys-one from the defense side and one from the plaintiff's side. After the selection of the two mediators, the parties enter into mediation with the intent of creating their own solution to the litigation with the assistance, guidance, and insight of the co-mediators. Critical to the process is that all interactions amongst the parties are considered settlement discussions that are undiscoverable to the outside litigation. The requirement that the co-mediators are experienced malpractice attorneys is also considered to be a critically important aspect of the Rush co-mediation process. The complexities of medical malpractice litigation become more manageable when the mediators themselves are inherently familiar with the arena.
Since 1995, Rush has participated in approximately 110 mediations. Ninety percent of the mediations were considered to have resulted in settlements. One clear benefit to the parties of the successful mediations was savings in their time investment. Mediations often resolved cases in a matter of hours, rather than the months or years that the litigation process would require. And while settlements achieved via the co-mediation process were not always at or below the reserves set for each case previously, Rush has found that the results have been consistently in line with their reserves, making budgeting for expected losses and overall expenditures more predictable.
Additionally, Rush found that their overall expenses for the defense of all malpractice cases have stabilized since the initiation of their co-mediation program. Through the co-mediation program, in-house counsel and risk management have been able to exert greater control over the negotiation of settlements. Other benefits have been realized, and will be further explored in a future issue of ED Legal Letter.
Disputes will always occur in medicine. Alternative dispute resolutions methodologies are available for use in resolving such disputes and should be seriously considered before running to the courthouse. However, to take advantage of such methodologies, they need to be in place and functional at the time the disputes present themselves. Being aware that the methods exist is the first step. Establishing active alternative dispute resolution processes that stand ready to handle disputes is the next step and will likely involve an investment of time and money from our institutions for these systems to come to fruition.
1. Lerner J, Brown MD, Gifford, GL, et al. "Co-Mediation in Medical Malpractice Cases." Illinois Institute for Continuing Legal Education, 2006; Chapter 19. Available at www.iicle.com.
2. Brown MD. Analysis & Perspective-Taking the "Un" Out of the Unpredictable: How to Control and Better Budget Your Medical Malpractice Exposure, BNA Health Law Reporter, 2007;16:847.