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The presence and participation of the chief of medicine was healing for the widow, which probably could not have been accomplished by the hospital’s attorney or risk manager. His stature and his commitment of time to the mediation eloquently conveyed the hospital’s determination to accept responsibility and learn from its mistakes. Early in the negotiation, the chief of medicine indicated in private session that he was not satisfied with simply working out a monetary settlement. It was important to him to give meaning to the loss of life. He suggested that the hospital fund an annual lecture in memory of the deceased. The plaintiff seemed moved by the idea and ultimately decided that a lecture would be an excellent memorial and that it should be on emergency medicine. This mediation lasted five and a half hours. Attending were the plaintiff, her brother, her lawyer, defense counsel, the chief of medicine, the director of risk management, and two representatives from the hospital’s insurance company. The hospital representatives were willing to apologize, at the beginning of the mediation, although not necessarily to admit legal liability. The hospital representatives looked for ways to restore ruptured relationships and learn more about how systems had failed as they also worked out a fair monetary offer. Consider once again the case of Mr. B who died after the insertion of a subclavian central line collapsed a lung. During the mediation, Mrs. B expressed her grief and anger, asked questions about her husband’s care (specifically why a resident had been allowed to place the central line), and told representatives from the hospital how she had been treated during and after the event. The chief of medicine, speaking for the hospital, started his response to Mrs. B by apologizing for what she had been through. He explained the reason a central line was needed and factors that go into deciding where to place it. He also discussed medical training and supervision of residents. The patience and empathy exhibited by the chief of medicine set a tone which began to repair the broken trust. The hospital representatives were shocked to learn that, contrary to hospital policy, no one had ever contacted the plaintiff to explain what had happened and to give her an opportunity to have her questions answered. Acquiring this information allowed the hospital representatives to go back and figure out exactly where the system had broken down. This mediation lasted seven and a half hours spread over two consecutive days.9 The participants included the plaintiff, her son, her attorney, defense counsel, the chief of medicine, the director of risk management, and a representative from the hospital’s insurance company. Similar to bioethics mediations and unlike conventional mediations, our experience in medical malpractice mediations suggests that in some cases it is helpful to begin with a physician explaining the medical events to the family or patient (Dubler and Liebman 2004). This structure also gives physicians the opportunity to offer an immediate apology. In medical malpractice cases we mediated, the physician spokesperson was the chief of medicine. It is not clear how this approach would have played out had the spokesperson been a physician directly involved in the event. If mediators decide to follow this order, we recommend letting all parties know ahead of time so, if they are familiar with traditional mediation in which the plaintiff speaks first, they will not be caught by surprise. It can also be helpful to coach the physician and his or her lawyer about the type of factual, non-defensive presentation that is most likely to be helpful. Ordinarily one starts mediations in the morning so there is an opportunity to capitalize on the momentum established during the day. In this case, however, the schedules of participants allowed for a relatively brief two – hour initial session.
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