Third-party mediators help hospital save time and money on disputes
Settlements in 80% of mediated cases, at a fraction of the cost to hospital
Alternative dispute resolution, or mediation, has been used in a variety of settings to bring people to a reasonable agreement without having to go through a long and expensive court case, but the idea has not taken hold in the health care arena. Some hospitals are finding out now that the idea is worth committing to because it can greatly decrease the hassle and potential expense of medical malpractice cases and other disputes.
Rush-Presbyterian-St. Luke’s Medical Center in Chicago is a pioneer in using mediation for medical malpractice, adopting the concept in a big way and proving that the idea can work just as well for the weighty issues of health care as it does for divorce or a traffic accident. The system can eliminate much of the confrontation and antagonism that seems inherent in pursuing cases through the court system, says Max Douglas Brown, JD, general counsel at Rush.
"Mediation, by its very nature, is less confrontational than jury trials," Brown says. "The environment in which mediations take place is very positive and a major factor in the success we have had."
Rush began the mediation program in 1995 in response to the unpredictability of jury trials. (See p. 127 for more on how Rush got involved in mediation.) Since then, 47 malpractice cases have been mediated with an 80% success rate; that means the dispute was settled with some agreement between the parties, usually quickly and relatively easily. In most cases, the payout was considerably less than might have been ordered by a jury, Brown says.
A jury trial might require days or weeks of work, in addition to all the preliminaries, and the total cost for just a typical malpractice case might be $25,000, Brown says. Mediation, on the other hand, usually takes about five hours once the parties sit down to talk and costs less than $5,000.
"Jury trials for medical malpractice cases are increasingly long, expensive, often combative, and unpredictable," he says. "In addition, no criteria exists to determine the monetary value of a life or loss of limb in trials, and plaintiffs have been awarded unlimited amounts of money. However, with mediation, the award is more controllable and a more realistic value can be given."
Important to get support of local attorneys
Rush’s mediation program relies on 25 of the Chicago area’s most prominent trial lawyers and judges to act as mediators. They all attended a two-day mediation training course. The lawyers were recruited by Jerome Lerner, JD, a retired Cook County, IL, circuit court judge who now acts as the mediation consultant for Rush’s program. Before retiring, Lerner presided over more than 300 cases, many of them medical malpractice cases.
The judge says hospitals are missing an opportunity to reduce the costs associated with medical malpractice cases if they do not pursue mediation. Many other industries pursue mediation of disputes on a regular basis, but the medical community has been slow to adopt the practice, he says.
"For any industry, mediation allows you to project the outcomes and costs of these disputes and to provide a satisfactory resolution," he says. "The dispute can be resolved for the patient who believes he has been injured and for the hospital that believes there is some basis for settling the matter amicably. It also determines the outcome with a certainty."
Lerner says networking with local attorneys is important to making a mediation program work. Without the confidence of attorneys who may bring a case against the hospital, cases will never make to the mediators.
"You have to get their interest and acquiescence in the program," he says. "If they’re not interested or [are] suspicious of why you’re doing it, they just won’t participate. There are still many lawyers out there who don’t understand the program and think it’s a just way for the hospital to win. When you really explain it to them, they usually think differently."
The mediation process begins with both parties and their counsels voluntarily agreeing to participate in the program. Rush invites the plaintiff’s counsel to select either a retired judge or two attorney mediators, one from the plaintiff’s bar and one from the defense bar. The two parties exchange pre-conference submissions that include a statement of facts, description of the injury, special damages, and past and future expenses.
Then the parties select a neutral location for the mediation to take place. "It has to be a nonconfrontational, very neutral setting," Lerner says. "Not at the hospital or one of the attorneys’ offices. We often use a club downtown that has many rooms available for meetings."
At the meeting, each party is given an opportunity to present its case and then the mediators meet individually with the parties. Afterward, the parties reconvene to conclude their negotiations. Not all negotiations result in a final resolution, but the program has a high success rate. Any resolution the parties agree to at the meeting is legally binding.
"We have found that the parties involved in mediations have accepted and appreciated the process as a means to bridge the chasm of conflict in a spirit of accommodation," Lerner says. "The mediators who have conducted these mediations have demonstrated the capacity to assist the parties in achieving a mutually satisfactory settlement, a role in contrast with that which they would ordinarily assume in the win-lose track of litigation."
Lerner says the mediation usually begins in the morning and is completed by the end of the day, in less time than it takes to pick a jury.
Two mediators are better than one
Using experienced medical malpractice lawyers as mediators is important, Lerner says. Because they are familiar with the territory, they can address disputes much more quickly and fairly than other legal professionals, he says. And he says it is crucial to use two attorneys from the plaintiff and defense bars as co-mediators, except when a retired judge is available, because they will ensure that both parties are treated fairly.
"It’s a synergistic combination," Lerner says. "They work so well together when you get two individuals who have been practicing on opposite poles of a dispute. It’s bound to bring about an inquiry that is so much more reliable. If you had one mediator, you might wonder if he or she is biased toward the plaintiff or the defense. With two, you can feel so much more confident about the outcome."
The Rush program encourages the plaintiff to pick both of the mediators. That lends some assurance that the mediation program is an honest attempt at dispute resolution, rather than a big powerful hospital’s attempt to railroad the plaintiff into an agreement. Lerner says most plaintiffs agree to the mediation when it is suggested, largely because they can see the benefits of a fast, less expensive resolution just as well as the hospital can.
Sources
Max Douglas Brown, Risk Manager, Jerome Lerner, Mediation Consultant, Office of Legal Affairs, Rush-Presbyterian-St. Luke’s Medical Center, 1700 W. Van Buren St., Suite 301, Chicago, IL 60612. Telephone: (312) 942-6886. Fax: (312) 942-5581. Web site: http://www.rush.edu.
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