Malpractice lawsuits have been around as long as there have been doctors and lawyers. But there may be a better way to resolve doctor-patient conflicts. It’s mediation, and it’s keeping some potential malpractice suits out of America’s crowded courtrooms. It’s also providing opportunities for patients to actually talk to their doctors, and giving doctors a chance to learn something from their mistakes.
In a nonconfrontational atmosphere, the mediator’s role is to sit down with both sides, as a group and individually, define the issues involved, assist in discussion and negotiation, and help craft a settlement agreeable to both.
Unlike arbitration, mediation is nonbinding. An arbitrator imposes a settlement: a mediator simply helps all parties seek common ground.
Barry C. Dorn, an orthopedic surgeon and associate director of the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health, said mediation often gives everyone involved more of a sense of satisfaction. In a standard malpractice complaint, a doctor would receive a letter from the state medical board, and “then the board spends a lot of time investigating the complaint,” Dorn said. Regardless of the board’s final decision on whether the complaint had merit, no one is left feeling like a winner, he said.
“A letter just goes to the complainant and doctor saying it’s all over — both parties are left totally unsatisfied,” Dorn said. “If a one-on-one was done with a mediator, several beneficial results come about: The physician learns something; the patient hears that the doctor has heard the complaint; and the situation is remedied, which means more public safety for all patients.” Mediation is a stark contrast to the litigation route. The most notable difference? Access to the doctor.
“Usually a doctor hears of a complaint from the state board. He in turn calls his attorney, who promptly tells him not to talk with anybody,” Dorn said. “The ability to talk this over one-on-one knocks down the walls between patient and doctor. … In over 90 percent of any of the complaint cases, there’s no threat to the common health or any real malpractice — it’s just an unfortunate accident.”
One New England health maintenance organization — Dorn wouldn’t say which one — has even developed a pilot project to mediate benefit disputes between its members and the system. HMOs see mediation as a way to keep their own costs down, but this kind of resolution also reaps rewards for consumers. The less HMOs have to spend on legal fees, the more likely that will translate into affordable rates for subscribers, according to David T. Caldon, a professor at Pepperdine University in Malibu, California.
HMOs aren’t the only health care giant watching the bottom line. The medical malpractice insurance industry also sees mediation as a way to keep costs down.
“Some (insurance) carriers now encourage physicians to meet with patients after a complaint,” said Leonard J. Marcus, director of the Harvard program. “Unless it’s a situation where a physician’s license could be taken away — you couldn’t really remedy that” through mediation.
There’s another reason for health care consumers to embrace mediation, Caldon said: It helps to level the playing field. When the cost of litigation outweighs any possible compensation, patients may not be able to find a lawyer willing to take the case.
“Ironically, whereas the traditional lawsuit and right to jury trial has long been seen as the great equalizer … the cost of litigating a small claim may keep a person with only moderate damages out of court entirely,” Caldon wrote in an analysis of the benefits and drawbacks of alternative dispute mediation.
Dorn and Marcus are trying to get others to sign on to the concept of health care mediation. Just last week they hosted an international conference for health care officials in the United States and Canada. One of the conference’s goals was to find out what states or provinces now work through disputes with mediators — and who would be open to doing more of it — Marcus said.
As more doctors and patients begin to view resolution as the most effective strategy, more and more mediators will offer their services in the medical arena. For now, the concept is so new that those who wish to initiate a mediated complaint should call the medical oversight board in their home state or contact the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health.