Health Care: Medical Negligence Mediation Dissected
BY GREGG BERTRAM, PRESIDENT, PACIFIC ADR CONSULTING, LLC
Mediating health care disputes presents many challenges for the mediator. Experienced, skilled mediators recognize that there are many galaxies within the universe of health care disputes. For example, a medical negligence mediation presents different variables than a mediation involving alleged nursing home negligence or one involving a naturopath enmeshed in a coding dispute with an insurer. So too do employment mediations that touch and concern health care possess emotional and other factors unique to themselves. Disputes between physicians in a medical practice are other controversies that touch and concern health care, including the privacy rights of patients. However, this article first focuses upon some of the peculiarities and challenges of mediating medical negligence disputes.
Medical negligence cases almost always involve significant human tragedy. Whether a particular case involving death or catastrophic injury to an individual allegedly as the result of medical negligence can be won at trial by a plaintiff is another matter. Statistically, very few medical negligence lawsuits are won by plaintiffs. Why? To win, a plaintiff must prove one or more violations of the applicable medical standard of care and that the violation in question caused the subject injury or death. Defendants routinely win trials where plaintiffs may prove a violation of the standard of care but are unable to prove necessary medical causation. Issues of standard of care and causation require expert medical testimony. Defendants typically have much better access to and assistance from world-class medical expert witnesses than do plaintiffs’ attorneys. Medical experts are very expensive and hospitals and insurance companies can also better afford these costs than plaintiffs. In addition, the medical issues in a professional negligence case are often many and complex. Many jurors have difficulty understanding the underlying science involved in such cases. Juror confusion or uncertainty benefits defendants. Defendants do not have the burden of proof at trial. Our legal system places this heavy burden solely upon the plaintiff.
In many states such as Washington the medical-legal community of attorneys, insurers and risk management professionals is small. This leads to many repeat litigation encounters between attorneys, defendants, their claims representatives and mediators. Resentments from past disputes between players sometimes linger and may have a negative influence upon current cases that can complicate settlements. Additionally, claims against individual physicians often require the consent of a defendant doctor to settle. Consent is often a specific power or right contained in a physician’s professional liability insurance policy. Individual doctors are often reluctant to grant consent to settle because malpractice settlements are generally required to be reported to national data banks.
The foregoing dynamics present significant challenges in mediation. These difficulties are enhanced when parties are reluctant to agree to more than a 4-hour mediation session. Unfortunately, 4-hour mediation sessions are common for many medical negligence disputes. This taxes even very experienced, adept mediators who must often deal with emotionally distraught plaintiffs or physicians reluctant to consent to any settlement. Further, multiple defendants usually disagree among themselves as to which of them should bear the lion’s share of responsibility to pay any settlement. In addition, defense claims representatives are often remote mediation participants located in different time zones and who are only available via phone. In such instances, time is often spent simply trying to reach these necessary parties. Too, there is often discord between attorneys and clients regarding claim value. The mediator must be aware of all of these issues in order to have any chance at achieving a global settlement. These complexities are often not apparent or disclosed until the mediation is underway. Attorneys and their clients should think carefully in advance about these issues when contemplating mediation design.
Confidentiality is also a customary, required element of medical negligence settlements. So too is defense insistence upon protection from lien and/or subrogation claims, especially those arising from ERISA plans or Medicare. Settlement agreement language concerning these items can be the subject of intense, even heated negotiation. This too requires time and mediator effort. Again, pre-existing 4 hour imposed time constraints are often inadequate to negotiate these important settlement terms.
As a practice tip, it is often useful to consult the mediator about appropriate mediation length. Pre -mediation telephone conferences between counsel and the mediator are advisable for this and other reasons. These can be global or, more commonly, between just one party’s attorney (and/or client) and the mediator. They are very useful for avoiding some or all of the above described mediation pitfalls. Thus, when in doubt, do not hesitate to communicate with the mediator prior to the commencement of the mediation session. Pre-mediation discussions often are often necessary steps along the path to settlement.