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Mediation – limits

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Mediation – limits

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A new study, published in the Journal of Health, Politics, Policy and Law, looked at 31 cases from 11 nonprofit hospitals in New York City in 2006 and 2007 that went to mediation. About 70% of the cases settled for amounts from $35,000 to $1.7 million. The abstract says:

Plaintiffs want their questions answered

Mediation of medical malpractice lawsuits provides savings for the parties by shortening the litigation process. In theory, information that aids emotional healing and improves patient care can also surface through mediation. The study discussed in this article used structured interviews of participants and mediators in thirty-one mediated malpractice lawsuits involving eleven nonprofit hospitals. The study measured perceptions of the process and mediation’s effects on settlement, expenses, apology, satisfaction, and information exchange. Defense lawyers were less likely than plaintiff attorneys to mediate. Both plaintiff and defense attorneys were satisfied with the process, as were plaintiffs, hospital representatives, and insurers. Changes in hospitals’ practices or policies to improve patient safety were identified.

This study demonstrates that major challenges stand in the way of achieving mediation’s full benefits. Absence of physician participation minimizes the chances that mediated discussion of adverse events and medical errors can lead to improved quality of care. Change will require medical leaders, hospital administrators, and malpractice insurers to temper their suspicion of the tort system sufficiently to approach medical errors and adverse events as learning opportunities, and to retain lawyers who embrace mediation as an opportunity to solve problems, show compassion, and improve care.

Comments:
One of the most common reasons why plaintiffs seek attorneys is to get answers. They want to know that the system has been changed to avoid injuring someone else in the same way. They want an apology. They want to see their physician has learned from the experience. They want closure. They want the respect that comes with a physician attending this serious meeting. In this study, in none of the mediations was the physician present. An important element is left out when the defendant physician does not attend the mediation. Adequately prepared and supported, the defendant’s presence may provide the healing that is needed . . . for everyone.

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