Most doctors live in fear of being sued for medical malpractice. Such claims are prevalent enough to explain the exorbitant malpractice insurance rates in many specialties. Malpractice claims bring the risk of a large judgment and a public trial.
Even if a doctor’s insurance company settles the lawsuit, that does not remove the stigma of a litigated malpractice claim.
Mediation offers a confidential forum to resolve malpractice claims. In addition to the benefit of confidentiality, doctors have the opportunity to resolve the matter through conversation or clear up what could just be a miscommunication between patient and doctor. In litigation, the doctor and patient do not get the chance to communicate. It has been found that communication is often a component in malpractice claims.
Sarah O’Neill, legal officer with the Scottish Consumer Council has stated: “Research shows that compensation is not the first thing that people are looking for – they want an apology and a reassurance that the same thing won’t happen again.” (May 1, 2007) ‘People don’t want compensation. They want explanations’, HeraldScotland.
One mediator and former litigator relays the story of a malpractice action in which he represented the plaintiff. After the case completed, the doctor came over to his former patient and said that he was sorry. The patient told the doctor that, if he had said that at the beginning, everything would have been different. The doctor and patient may have avoided stressful and expensive litigation if they had participated in mediation and communicated.
A December 14, 2010 Wall Street Journal article entitled “Big Challenge for Mediation in Medical Malpractice: Doctor Participation” discussed a recent study published in the Journal of Health Politics, Policy and Law. The study found that medical malpractice mediation was effective. However, it would be more beneficial if doctors attended the mediation to facilitate the communication aspect of alleviating conflict. The report states that, when doctors do not participate, they lose the opportunity to: “repair the relationship between human beings,”
When facing a lawsuit, doctors would be well served to discuss early mediation with their attorney.
Alona M. Gottfried is a mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona(at)sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260