By Michelle Andrews
Monday, January 31, 2011; 8:53 PM
When a health-care provider harms instead of heals, patients who seek answers and redress generally face the prospect of a long and costly lawsuit. But there's another option, one that can significantly reduce the toll of a court battle while providing many of the same benefits to patients and their families: mediation.
As politicians discuss tort reform and caps on damage awards, fans of mediation tout its potential to save patients, doctors and hospitals time and money and avoid the courtroom altogether.
In mediation, both parties sit down with a trained professional, sometimes a lawyer or a former judge, to discuss what went wrong and seek to work out a settlement. During a session that may last for several hours, lawyers for the opposing parties do the negotiating. But patients or their family members, health-care providers and insurance representatives may take part as well.
A handful of states, including Maryland, as well as the District, require opposing parties in medical malpractice cases to try mediation before going to court.
In states that don't require mediation, it is fairly uncommon, though lawyers for either side may suggest it to their clients as an alternative to a drawn-out legal battle.
Whatever is said in mediation is confidential and cannot be used in court. "It's a setting that lets people talk to each other without worrying that what they say may come back to bite them in litigation," says Carol Liebman, a clinical professor of law at Columbia University who co-authored a recent study in the Journal of Health Politics, Policy and Law examining the potential for mediation to improve patient safety.
Agreeing to try mediation doesn't mean that opposing parties can't decide to litigate instead. In practice, however, about 95 percent of cases that go to mediation settle there, estimates Jerry Roscoe, a former medical malpractice litigator who now works as a mediator for JAMS, a large private provider of dispute resolution mediators based in Irvine, Calif. "Families have already been through so much," he says. "Neither side wants to put them through a literal and figurative trial."
When Nikki Clark's mother went to the emergency room near her home in New York about seven years ago because she was having trouble breathing, ER staff diagnosed tonsillitis and admitted her overnight for observation. At 4 a.m. the next day, Clark, then 21, got a call from the hospital telling her that her mother, 41 and otherwise healthy, had died.
An autopsy later showed she'd been given an overdose of a painkiller. No one had checked on her during the night, and by the time a staff member looked in, she was dead. She left behind not only Nikki but two other children, then ages 2 and 3.
Clark filed a wrongful-death suit. Her lawyer suggested she consider mediation, something she'd never heard of. She's glad she did. In a meeting with hospital representatives and lawyers for both sides, Clark says, she got the answers she needed about her mother's death and an apology from the lawyer for the hospital. That helped give her some peace, she says, and besides: "I don't think I could have made it through a trial."
Achieving emotional closure may be easier in mediation than in an adversarial court setting, say advocates. Improving the quality of care is another potential upside. If clinical staff members who were involved in the problematic care are present at the session, they could discuss systemic factors that contributed to the issue, "and that could lead to systemic changes to prevent it happening again," says Chris Stern Hyman, a lawyer and mediator who is one of the co-authors of Liebman's study.
In the end, though, mediation is about money. In Clark's case, the process led to a financial settlement much more quickly than the five years a New York mediator estimated that it can take for a medical malpractice case to be resolved in that state in court. Clark received $1.7 million, with 30 percent going for her lawyer's fee.
Although precise figures are unavailable, plaintiffs may well receive somewhat smaller awards in mediation than they would if the case went to trial, says Jim Leventhal, a senior partner with the Denver law firm Leventhal, Brown & Puga, who represents patients in medical malpractice cases.
Nonetheless, mediating removes uncertainty, and that may be worth a lot. "At trial you're faced with winning or losing," Leventhal says. In mediation, "the patient is buying out the risk that they might lose."
This column is produced through a collaboration between The Washington Post and Kaiser Health News. KHN, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health-care-policy organization that is not affiliated with Kaiser Permanente.