MEDICAL DISPUTES AND MEDIATION

Disputes over the delivery of medical care creates stress for the patient and the doctor.

Patients and their families want to know “why” and “how” an event occurred. Patients and families want information. Many want to hear an apology or other acknowledgement of their loss.

Most physicians are given little or no training for handling disputes with patients. If anything, they have been advised that saying too much can lead to litigation. Many have been warned that an apology can be perceived as an acceptance of responsibility and liability. With that advice, most are reluctant to disclose any information as it might be used against them.

And litigation is often the outcome of medical disputes. Litigation creates additional stress for the patient, the family, and the medical professional. The dispute becomes adversarial with the parties taking positions and assembling evidence to support their grievances. While it is true that in most medical court cases, judges and juries decide in favor of the medical professional, the time invested in the dispute is months and most often years. Throughout, patients and their families continue to deal with the unresolved stress. And medical professionals also experience stress as well as lost time, costs and risk compromising their reputation.

When medical disputes were handled by mediation:
In the first, co-mediators were used—one mediator, an attorney who typically represented patients, and the other an attorney who typically represented doctors and hospitals in medical liability cases. If the first five years of the program 80% of the cases were resolved within three to four hours. While payouts were lower, patients were willing to accept the outcomes because of their timeliness.

A second program was set up to facilitate settlements that went beyond financial outcomes to allow the doctors, patients and their families to consider non-monetary solutions, such as apologies and revisions to practices that might avert future errors.

While mediation of medical disputes has the advantages of reduced costs, time and improved patient-physician relationships, there are barriers to wider use. Payments made on behalf of physicians as a result of mediation must be reported to the U.S. Department of Health & Human Services’ National Practitioner Data Bank. This requirement, of course, negates the traditional confidentiality of mediation. As litigation favors the physician there is strong motivation to litigate.

Nonetheless, medical disputes are certainly an area where expanded use of mediation would benefit all parties.