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Mediating malpractice suits saves money, study finds

Using mediation prior to medical malpractice lawsuits can often save money and smooth the way for settlement, but doctors, hospitals and lawyers remain wary of it, a new study says.

The study, co-authored by Columbia Law School Professor Carol Liebman, found mediation has the potential to offer closure to plaintiffs and ensure that procedures are changed in hospitals to prevent recurrences of the error that sparked the lawsuit. Yet too often, that potential goes unrealized, Liebman said.

"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," Liebman said.

The study was published this month in the Journal of Health, Politics, Policy and Law.

Liebman, an internationally recognized expert on mediation and negotiation, directs the law school's mediation clinic. Co-author Chris Stern Hyman was formerly an adjunct research scholar at the law school.

According to the study, mediation uses an impartial third party to help both sides negotiate a mutually acceptable resolution. The parties are not required to settle and can return to litigation. However, all mediation sessions are confidential and what is discussed is inadmissible if the dispute goes to court.

The study looked at 31 cases from 11 nonprofit hospitals in New York City in 2006 and 2007 that went to mediation. About 70 percent of the cases settled either during or after mediation, resulting in monetary settlements from $35,000 to $1.7 million.

Mediation would appear to be compelling in medical malpractice cases because the outcome is under the parties' control, the authors said. In addition, plaintiffs can receive payment soon after the harm instead of waiting years. Defendants do not have to pay outside lawyers to try the case, and members of the medical staff do not have to prepare for discovery and a trial.

Even if the mediation doesn't resolve the case, it may create enough momentum to lead to a settlement, the study found.

In spite of those benefits and the fact that many of the mediated cases were settled, the study found that "major challenges" remain for mediation to gain greater acceptance in malpractice suits.

In none of the cases studied did a doctor take part in the mediation. The study authors view that as a missed opportunity, noting "it is possible that plaintiffs would have been even more satisfied with the process had their physicians demonstrated respect and caring" by attending the mediation.

Defense lawyers often cited the doctors' work schedules to explain their absence. Others said they didn't want to subject the doctors to verbal attacks from the plaintiff. The study concluded, however, that this "deprives" both doctors and their patients of the opportunity for "healing, understanding, forgiveness, the repair of broken relationships and failed communication."

The authors cited research that found patients expect an apology after a medical error and that most doctors want to oblige, but they – and their lawyers – refrain from doing so out of fear of legal liability. The confidentiality of mediation would obviate that, the study said.