Results of a recent study show that mediation can help to resolve malpractice suits more efficiently, but doctors and hospitals and their lawyers often resistant using it. The study, published in the Journal of Health, Politics, Policy and Law (2010;35:797-828), looked at 31 cases from 11 nonprofit New York City hospitals that went to mediation. Of these cases, 16 were settled during mediation, five were settled afterwards, and 10 were not settled. Settlements ranged from $35,000 to $1.7 million.
Mediation, as defined in the study, is a “voluntary, confidential conflict resolution process in which an impartial third party, the mediator (or co-mediators), assists the disputants in negotiating a mutually acceptable resolution.” Mediation provides the parties with a “safe” environment to discuss the case.
In the event that the dispute is not resolved, the negotiations remain confidential and cannot be used in court. The study identified numerous benefits to mediation, including swift resolution of cases, avoidance of expensive trials, and having the outcome be under the parties’ control rather than at the whim of a judge or jury.
However, the authors of the study pointed out that in none of the 31 cases studied did a doctor take part in the mediation. The authors noted that this resulted in a missed opportunity for the physician to provide closure for the plaintiff and to apologize for any medical error that occurred. Defense attorneys cited busy schedules and a concern about being verbally attacked as reasons why the physicians did not take part. The researchers pointed to research showing that patients want an apology after an error, and because mediation is confidential, there should be no fear on the part of the doctor that an apology would be used in court should mediation fail.
“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, the researchers wrote. The authors concluded that although mediation has the potential to resolve lawsuits in an easier and less costly manner than lawsuits, major challenges still remain for mediation to gain greater acceptance in malpractice cases.