Mediation and medical malpractice: The need to understand why patients sue and a proposal for a specific model of mediation

Journal of Legal Medicine

Volumn 29, Issue 3, 2008, Pages 285-306

  Meruelo, Natasha C ^a  

^a Nelson Law Firm LLC

Author keywords

[No Author keywords available]

Indexed keywords

COURT; DECISION MAKING; HUMAN; LAW ENFORCEMENT; LAW SUIT; LAWYER; MALPRACTICE; MEDICAL PROFESSION; MONEY; OFFENDER; PATIENT ATTITUDE; PATIENT INFORMATION; PHYSICIAN ATTITUDE; PSYCHOLOGICAL ASPECT; REVIEW; VICTIM;

COMMUNICATION; EMOTIONS; EXPERT TESTIMONY; HUMANS; INSURANCE, LIABILITY; LIABILITY, LEGAL; MALPRACTICE; MEDICAL ERRORS; MOTIVATION; NEGOTIATING; PATIENT EDUCATION AS TOPIC; PATIENT SATISFACTION; PHYSICIAN-PATIENT RELATIONS; UNITED STATES;

EID: 50149083529     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947640802297553     Document Type: Review

References (122)

1. See Joseph B. Treaster, Malpractice Insurance: No Clear or Easy Answers, N.Y. TIMES, Mar. 5, 2003, at C1 (referring to President Bush's extensive tort reform efforts to control the rising costs of medical malpractice insurance because of lawsuits exacerbating the cost of medicine and consequently driving physicians out of business);
2. John J. Fraser, Jr., Technical Report: Alternative Dispute Resolution in Medical Malpractice, 107 PEDIATRICS 602 (2001).
3. But see David A. Hyman, Medical Malpractice and the Tort System: What Do We Know and What (If Anything) Should We Do About It?, 80 TEX. L. REV. 1639, 1641 (2002) (noting that medical malpractice litigation "is actually an extremely small and highly unrepresentative sample of total litigation in the United States");
4. Edward J. Kionka, Things to Do (or Not) to Address the Medical Malpractice Insurance Problem, 26 N. ILL. U.L. Rev. 469, 472-73 (2006) (referring to evidence that argues the explosion of claims and size of verdicts that are the purported reasons for medical malpractice tort reform are not substantiated by the results of various studies, but acknowledging there is still a problem).
5. Erin Henley, What Hope Is There for Meaningful Tort Reform to Stop Another Malpractice Crisis?, 55 J. FAM. PRAC. 782 (2006).
6. Treaster, supra note 1.
7. See, e.g., Office of the Governor of the Commonwealth of Pennsylvania, Office of Health Care Reform, Governor Rendell Announces Medical Malpractice Liability Proposals, GOVERNOR'S PRESSOFFICE PRESS RELEASE, Mar. 24, 2004, available at http://www.gohcr.state.pa.us/news-and-events/index.html (last visited July 17, 2007).
8. Ted Babbitt, Why Lawyers Turn Down Malpractice Cases, at http://www.babbitt-johnson. com/why_turn_down.html (2005) (last visted June 17, 2007) (stating the costs for plaintiffs of the average malpractice case commonly exceed $250,000.00).
9. Jane Gordon, Doctors Upset Over Malpractice: Patients Are, Too, N.Y. TIMES, Mar. 23, 2003, at 14CN.
10. For example, although physicians emerged victorious in 57% of a sample of lawsuits that went to trial within New York State, the average cost of defense was $15,091 per case. Sanford A. Kaplan, Malpractice Costs Are Peril to Health, N.Y. TIMES, Mar. 27, 1983, § 11, at 33.
11. Abraham Verghese, The Way We Live Now: Hard Cures, N.Y. TIMES, Mar. 16, 2003, § 6, at 11 ("In some states like Florida and West Virginia, neurosurgeons and others in high-risk, high-liability specialties are closing shop or retiring early.").
12. Lloyd M. Krieger, Doctors Belong in Hospitals, Not Courtrooms, N.Y. TIMES, Jan. 6, 2003, at A21 (stating that, as a practicing physician, the author feels compelled by the current medical malpractice litigation system to practice defensive medicine by ordering unnecessary tests and evaluating new patients for indications of likeliness to sue instead of focusing on their possible illnesses);
13. see also Henry Eisenberg, A Doctor on Trial, N.Y. TIMES, July 20, 1986, § 6, at 26.
14. Henry S. Farber & Michelle J. White, Medical Malpractice: An Empirical Examination of the Litigation Process, 22 RAND J. ECON. 199, 200 (1991) (describing pretrial discovery, which has a number of stages, and how with each stage comes more legal expense).
15. Id. at 200 ("[T]he contingency fee system gives plaintiffs' lawyers a strong incentive to screen prospective clients and to accept only cases having sufficiently high expected value."); Babbitt, supra note 5 ("The sad reality is that from a legal perspective, much more than a mistake is needed to have a successful malpractice case.").
16. Babbitt, supra note 5 ("Before a lawyer is willing to advance [the costs of litigation], the damages must be significant enough to justify the hope that not only will there be an adequate recovery of the costs expended, but that there will be sufficient funds to adequately compensate the victim as well as the attorney.").
17. Farber & White, supra note 10, at 206-07 (stating defendants win most trials in medical malpractice cases and the chance of a plaintiff walking away with no recovery after a trial is great).
18. "A Harvard study estimated that the number of people injured or killed by medical malpractice in hospitals is the equivalent of one jumbo jet crashing every day." Aviva Orenstein, Apology Excepted: Incorporating a Feminist Analysis into Evidence Policy Where You Would Least Expect It, 28 SW. U.L. REV. 221, 257-58 (1999);
19. see also Troyen A. Brennan et al., Incidence of Adverse Medical Events and Negligence in Hospitalized Patients - Results of the Harvard Medical Practice Study I, 324 NEW ENG. J. MED. 370 (1991).
20. Infra § IV.
21. Verghese, supra note 8, at 11 (recalling advice that patients who like their physicians do not sue, despite what an attorney may tell them); Orenstein, supra note 14, at 271 (referring to studies finding physicians who have poor communication experiences with patients tend to be the ones who are sued).
22. Gerald B. Hickson et al., Obstetricians' Prior Malpractice Experience and Patients' Satisfaction with Care, 272 J.A.M.A. 1583, 1583-87 (1994) ("Women were most likely to complain about aspects of patient-physician communication. The most frequently cited problem was the perception that a physician would not offer information or that they would not listen. Closely related were complaints about the human aspects of the care provided, often a perceived lack of concern or respect for the patient.").
23. Id. at 1587.
24. Farber & White, supra note 10, at 216.
25. Id. (finding evidence that plaintiffs are not well informed about the likelihood of negligence before they enter into litigation).
26. Id.
27. Albert W. Wu et al., To Tell the Truth - Ethical and Practical Issues in Disclosing Medical Mistakes to Patients, 12 J. GEN. INTERN. MED. 770, 770 (1997) (stating that, although mistakes are common among practicing physicians, physicians often do not tell patients or their families about them even when a definite mistake results in a serious injury).
28. Thomas H. Gallagher, M.D., et al., Choosing Your Words Carefully: How Physicians Would Disclose Harmful Medical Errors to Patients, 166 ARCH. INTERN. MED. 1585 (2006).
29. Letter to the Editor, When Doctors Hide Medical Errors, N.Y. TIMES, Sept. 9, 2006, § A.
30. Orenstein, supra note 14, at 266.
31. Wu et al., supra note 22, at 770-71.
32. Id. at 770, 772.
33. Orenstein, supra note 14, at 263; AMERICAN MEDICAL ASSOCIATION, CODE OF MEDICAL ETHICS, OPINIONS ON THE PATIENT-PHYSICIAN RELATIONSHIP, OPINION E-10.015, at http://www.ama-assn. org/ apps/pf_new/pf_online?f_n=browse&n_p= T&&s_t=&st_p=&nth=th=1&prev_pol=policyfiles/E-10.00. HTM&nxt_pol=policyfiles/HnE.E-10.015.HTM& (2007) (last visited June 17, 2007) ("The relationship between patient and physician is based on trust and gives rise to physicians' ethical obligations to place patients' welfare above their own self-interest and above obligations to other groups, and to advocate for their patients' welfare.");
34. see also Herbert Rakatansky, Report of the Council on Ethical and Judicial Affairs: The Patient-Physician Relationship, at http:// www.ama-assn.org/ama1/pub/upload/mm/369/ceja_1a01.pdf (2001) (last visited June 17, 2007).
35. Orenstein, supra note 14, at 266.
36. Id. at 268.
37. Marlynn L. May & Daniel B. Stengel, Who Sues Their Doctors? How Patients Handle Medical Grievances, 24 LAW & SOC'Y REV. 105, 116 (1990) (concluding that two main factors guide patients' decisions to sue - a physician's perceived competence and how much attention a physician pays to a patient's health).
38. Id. at 106-07.
39. "A neutral third party, the mediator, maintains an informal environment so the parties can discuss and resolve accusations and work through conflict and emotionally-charged issues with their attorneys and each other, which otherwise would be difficult to accomplish through litigation." Rita Lowery Gitchell & Andrew Plattner, Mediation: A Viable Alternative to Litigation for Medical Malpractice Cases, 2 DEPAUL J. HEALTH CARE L. 421, 421 (1999).
40. See Gary Friedman & Jack Himmelstein, The Understanding-Based Model of Mediation, The CENTER FOR MEDIATION IN LAW, at http://www.mediationinlaw.org/about.html (2006) (last visited July 15, 2007);
41. CARRIE MENKEL-MEADOW ET AL., MEDIATION: PRACTICE, POLICY, AND ETHICS 119 (2006).
42. Gitchell & Plattner, supra note 33, at 422, 425; MENKEL-MEADOW ET AL., supra note 34, at 93.
43. Gitchell & Plattner, supra note 33, at 424.
44. Verghese, supra note 8, at 11 (recalling how, after getting through a lengthy malpractice litigation, a fellow physician stated that he now saw patients as the enemy).
45. Lon L. Fuller, Mediation - Its Forms and Functions, 44 S. CAL. L. REV. 305, 307-09 (1971).
46. Eric Galton, Mediation of Medical Negligence Claims, 28 CAP. U.L. REV. 321, 321 (2000).
47. See Babbitt et al., supra note 5.
48. Galton, supra note 39, at 323-24; Fraser, supra note 1, at 603-04.
49. Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 L. & POL'Y 7, 19-20 (1986).
50. Disclosure of Medical Errors Desirable but Difficult, Researchers Find, INS. J., Aug. 3, 2006, available at http://www.insurancejournal.com/news/national/2006/08/03/71075.htm (last visited July 17, 2007) (stating that medical errors are extremely emotionally traumatic for physicians).
51. Wu et al., supra note 22, at 771-72.
52. Id. at 772.
53. Id.; see generally Edward A. Dauer, When the Law Gets in the Way: The Dissonant Link of Deterrence and Compensation in the Law of Medical Malpractice, 28 CAP. U.L. REV. 293 (2000).
54. Galton, supra note 39, at 325.
55. MENKEL-MEADOW ET AL., supra note 34, at 119.
56. ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: THE TRANSFORMATIVE APPROACH TO CONFLICT 65-66 (2005).
57. Joseph P. Folger & Robert A. Baruch Bush, Transformative Mediation and Third Party Intervention: Ten Hallmarks of a Transformative Approach to Practice, 13 MEDIATION Q. 263, 264-67 (1996); MENKEL- MEADOW ET AL., supra note 34, at 251-52.
58. Folger & Baruch Bush, supra note 50, at 264-67.
59. Michelle Andrews, For Patients, Unpleasant Surprises in Arbitration, N.Y. TIMES, Mar. 16, 2003, § 3, at 8;
60. Ellwood F. Oakley, III, The Next Generation of Medical Malpractice Dispute Resolution: Alternatives to Litigation, 21 GA. ST. U.L. REV. 993, 998 (2005) (stating that California, Tennessee, and Louisiana have adopted laws that approve contracts with provisions stating disputes will be resolved via binding arbitration).
61. "Patients who go through arbitration instead of a jury trial, however, may feel as if they have been hurt twice: first by their health care provider, then by the system that is supposed to resolve the problem." Andrews, supra note 52, at 8.
62. Fraser, supra note 1, at 604.
63. Andrews, supra note 52, at 8. But see Oakley, supra note 52, at 995.
64. Patricia Gaul, ABA Endorses Voluntary Mediation in Medical Malpractice; Opposes Current Health Courts Proposals, ABA NEWS RELEASE, June 23, 2006, available at http://www.abanet.org/ media/releases/news062306.html (last visited July 17, 2007).
65. Andrews, supra note 52, at 8 (referring to the high costs of arbitrators' hourly rates as well as the hundreds of thousands of dollars plaintiffs had to spend to prepare their case including hiring medical experts).
66. Fraser, supra note 1, at 604.
67. In Maine, a judge chairs a screening panel and must choose two or three additional panel members from a court-approved list. The panel must include one attorney, one health care practitioner, and one health care provider who practices in the specialty or profession of the defendant health care provider. When there are two defendants, the judge may choose a fourth member, who must be a health care practitioner or provider. When parties are in agreement, a person outside of the list may be a panel member. In Massachusetts, by contrast, a three-member tribunal consisting of a judge of the Superior Court, a physician and an attorney must hear every medical malpractice complaint before it is deemed fit to go to trial. Jerome Harleston, Medical Malpractice Screening Panels, OLR RESEARCH REP. 2003-R-0465, CONN. GENERAL ASSEMBLY, June 2, 2003, available at http://www.cga.ct.gov/olr/medicalmalpractice.asp.
68. See ME. REV. STAT. ANN. tit. 24, § 2852 (West 2006);
69. MASS. GEN. LAWS ANN. ch. 231, § 60B (West 2007).
70. Fraser, supra note 1, at 604-05.
71. Oakley, supra note 52, at 1001.
72. "In Louisiana, absent an agreement by both parties to submit to binding arbitration, all medical malpractice claims must go before a medical review panel. . . . The panel's sole function is to determine whether or not the evidence supports the conclusion that the defendant or defendants failed to act within the appropriate standards of care." Oakley, supra note 52, at 1004; see LA. REV. STAT. ANN. § 1299.47(A)(1)(a)(ii)(c) (2004).
73. See William W. Kridelbaugh & Donald J. Palmisano, A 20-Year Experience with Malpractice Screening Panels, 82 BULL. AM. COLL. SURGEONS 21 (1997).
74. Gitchell & Plattner, supra note 33, at 457-58.
75. Id. at 458.
76. See infra § V.
77. Farber & White, supra note 10, at 200.
78. Id.
79. Id. at 201.
80. Id.
81. Id. ("Expectations about the decision that a judge or jury would make in a given case provide an important constraint on negotiations, in that each party will use this expected outcome as a benchmark to judge settlement offers.").
82. Gitchell & Plattner, supra note 33, at 430-31.
83. Evaluative mediation is a controversial mediation style because it may put the mediator in an awkward position with respect to the party the mediator evaluated to have the poorer case. Elements of mediator neutrality may be lost because the "loser" party starts to view the mediator as biased and incapable of being neutral. Id. at 430.
84. Id. at 431.
85. Id. at 431-32.
86. Peter Geier, Emerging Med-Mal Strategy: "I'm Sorry," 28 NAT'L L.J. 1 (July 24, 2006), available at http://www.law.com/ jsp/article jsp?id=1153472732197 (last visited July 17, 2007).
87. Cyril Tuohy, It Pays to Be Polite: Disclosure and Apology Slash Legal Costs, 17 RISK & INS. (Issue 11, 2006), available at http://www.riskandinsurance.com/story.jsp?storyId=13406648 (last visited July 17, 2007).
88. Geier, supra note 76.
89. Id.
90. Id.
91. Id.
92. Tuohy, supra note 77.
93. Id.
94. Id. (noting that complex and larger disputes are harder to settle through this method because attorneys feel their clients may fare better by proceeding through the adversarial system).
95. Id.
96. Since the program's inception at the University of Michigan Health System in 2001, claims against the member hospitals have dropped even though clinical activity has gone up. In 2001, there were 262 claims, in 2002 200 claims, in 2003 193 claims, in 2004 155 claims, in 2005 114 claims, and through July 2006 100 claims. Geier, supra note 76.
97. Id.
98. The cases that submitted to mediation concerned claims regarding surgical error, failure to diagnose, and wrongful death. Chris Stern Hyman & Clyde B. Schechter, Mediating Medical Malpractice Lawsuits Against Hospitals: New York City's Pilot Project, 25 HEALTH AFF. 1394 (2006).
99. Id.
100. Id.
101. Id.
102. Edward A. Dauer&Leonard J. Marcus, Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement, 60 L. & CONTEMP. PROBS. 185, 205 (1997).
103. Id. at 206.
104. Id.
105. Id.
106. Id.
107. Id. at 207.
108. Id.
109. Id. at 207-10.
110. Id. at 211.
111. Gitchell & Plattner, supra note 33, at 447-50.
112. Christopher Guadagnino, Malpractice Mediation Poised to Expand, PHYSICIAN'S NEWS DIGEST, Apr. 2004, available at www.physiciansnews.com/cover/404.html (last visited June 30, 2007).
113. Id.
114. Id.
115. 42 U.S.C.A. § 11131 (West 2007).
116. Guadagnino, supra note 102.
117. Id.
118. Ralph Peeples et al., Settlement Has Many Faces: Physicians, Attorneys and Medical Malpractice, 41 J. SOC. & HEALTH BEHAV. 333, 338 (2000).
119. "Each entity (including an insurance company) which makes payment under a policy of insurance, self-insurance, or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim shall report, in accordance with section 11134 of this title, information respecting the payment and circumstances thereof." 42 U.S.C.A. § 11131 (West 2007).
120. See Kaplan, supra note 7, at 33.
121. Linda Morton, A New Approach to Health Care ADR: Training Law Students to Be Problem Solvers in the Health Care Context, 21 GA. ST. U.L. REV. 965, 970 (2005).
122. AMERICAN BAR ASSOCIATION, MODEL RULES OF PROF'L CONDUCT R. 1-3 (2004).