GPSOLO September 2010
Mediating Medical Malpractice Lawsuits
By Chris Stern Hyman and Carol B. Liebman
As the use of mediation in health care increases, mediators have a special opportunity and responsibility to educate participants about the full range of benefits available through mediation and to encourage participants to think about how what they learn during mediation can contribute to patient safety.
The general benefits of using mediation are well known in the legal world: prompt, less expensive resolution; party and lawyer decision making and control over the shape of any outcome; agreements that can be more nuanced than court judgments and can include provisions that a court could not order; and, because mediation discussions are confidential, more candid and less strategic communication.
Mediation provides additional benefits in the health care setting. In mediation, health care providers may learn about missed or ignored information that contributed to the harm or about ways that established procedures were ignored. Eliciting this sort of information can allow institutional changes to improve patient safety. In addition, participants may, for the first time, learn exactly what happened to them or their loved ones, and patients and family members may come to understand the complexities and uncertainties of medical care.
We have conducted three research projects using mediation to resolve health care disputes. The first, a demonstration project based in Pennsylvania, focused on using mediation skills to enhance physician and hospital communication with patients and families after an adverse event. Later studies evaluated the use of interest-based mediation to resolve medical malpractice cases. The first of these studies involved lawsuits filed against municipal hospitals within the New York City Health and Hospitals Corporation. The second, larger study involved mediating lawsuits referred from private, nonprofit hospitals in New York City.
Despite the general “success” of the New York studies’ mediations, as measured by participant satisfaction, comments of participants, and settlement rates, we find the results disappointing. Because of the lack of physician participation, none of the mediation discussions contributed, as far as we could determine, to improved patient safety or quality of care.
By contrast, the authors mediated two pending wrongful death lawsuits against one hospital as part of the Pennsylvania demonstration project. In both cases, the chief of medicine participated, as did representatives from the hospital’s insurer, the director of patient safety, the hospital’s outside counsel, the plaintiffs, and the plaintiffs’ lawyers. The physicians directly involved in the patient’s care did not participate in either mediation.
In one case, the patient with end-stage chronic obstructive pulmonary disease died after a resident inserted a subclavian central line and nicked the patient’s lung. At the mediation, the patient’s widow told the hospital’s representatives how she had been abandoned after being told of her husband’s death. The physician apologized and then explained that from his perspective the placement of the line was not negligent but acknowledged it might have been better to have inserted the central line in the patient’s neck. However, he also explained that as a result of reviewing the facts of this case, the department of medicine had adopted a new decision tree for the placement of central lines to avoid this harm in the future. Between the first and second day, the chief of medicine spoke with the former resident, who stated that he was still haunted by the case and grieves for the patient every day. Learning about the impact on the resident of her husband’s death, even though it was secondhand, seemed to give significant comfort to the widow and raised a question for us about the possible healing that might have occurred had the resident been able to attend. The widow also told how she had arrived at the hospital in the early morning in response to the resident’s urgent call and learned from the attending physician that her husband had died. She was then left standing alone in the hall outside her husband’s room. Until the mediation, no one had explained to her what had happened. She filed the lawsuit in part to get answers to her questions. The chief of medicine and the director of patient safety were appalled at how the widow had been treated. The settlement agreement included a commitment to conduct ongoing staff training on how to respond to family members grieving as a result of the death of a loved one in the hospital.
Neither a litigation mind-set prior to mediation nor an evaluative approach during mediation would have produced the new decision tree guide for placing a central line, an improvement in medical care, nor training in care for grieving family members, an improvement in caring delivery of services. And neither change would have been possible without the participation of a physician.
The second case involved an elderly man on Coumadin, a blood thinner used to prevent and treat clots, who was admitted to the emergency room the morning after a fall. Contrary to hospital policy, the wife was not allowed to be with her husband for his final hours. The patient was initially misdiagnosed with an infection rather than internal bleeding. At the mediation, the chief of medicine listened to the widow and responded to her rage with an apology that acknowledged the hospital’s responsibility for the misdiagnosis. He explained what treatment had been administered. In the course of the five-and-a-half-hour mediation, the widow moved from rage to sadness and ultimately expressed gratitude for the physician’s apology. The hospital changed its procedures so that a patient on Coumadin who has fallen and enters the hospital through the emergency room is seen by a trauma surgeon.
Physicians often fail to tell the patient or family member about a misdiagnosis or a wrong treatment because of fear of the consequences of doing so or lack of training and experience in having these sorts of difficult conversations. When these conversations occur in mediation, a confidential process, the mediator, experienced in the necessary communication skills, can coach both parties to ensure productive dialogue. The expression of emotions by both parties is an essential ingredient for healing and restoration of trust.
What initiatives might encourage physician participation in medical malpractice mediations, thereby providing the chance to turn tragic outcomes into learning opportunities that can improve quality of medical care? Pilot mediation programs, sponsored by hospitals, in which treating physicians or another physician familiar with the case participate would give hospitals firsthand experience with direct patient-physician conversations, assisted as needed by the mediator. For hospitals that are not entirely self-insured, the hospital and physicians’ insurers need to concur with the decision that physicians will participate in the mediations. In addition, mediators can continue to educate lawyers, physicians, patients, hospital leaders, and insurers about the research on the benefits of direct communication between patients and physicians after something goes wrong in medical care, even after a lawsuit has been filed.