Embedded Files
Page 11
As it turned out, having time overnight to digest new information, absorb differing perspectives, and get additional answers to one of the plaintiff’s questions seemed to aid the resolution process. Some mediators teach that once progress toward resolution begins, it is best to keep going to maintain momentum. Our experience in this case, limited though it is, suggests that time for reflection may be important in settling some cases. While we would have preferred that the physicians involved in the events participate in the mediation, they chose not to. Their non-participation raised questions for families who were looking for indications that the doctors cared about what happened. (4) The plaintiffs’ lawyers were willing to take the risk of trying a new process. Neither of the lawyers for plaintiffs had previously participated in mediation but both recognized the potential benefits to their clients and were willing to advise their clients to participate. In addition, they were able to join in problem-solving during mediation, listening to their clients’ concerns, and putting aside (with only occasional relapses) the litigator’s adversarial approach. (5) The plaintiffs had the opportunity to “introduce” the deceased patient to the other participants in the mediation. In these cases the central figures in the dispute had passed away. In other cases the patient may not be able to participate. In such situations it is often helpful to give family members the opportunity to describe their loved one to the mediator and hospital representatives as something more than just a “patient” or “victim.” Doing so humanizes the discussion and shows respect for the injured person. (6) Both sides had the opportunity to acquire important information The widows had the opportunity to ask questions, sometimes repeatedly, about things that were important to them though not always relevant to the legal case. They acquired information which seemed to be critical in helping them understand what had happened and cope with their loss. The information facilitated settlement of the lawsuits. At the same time, hospital representatives learned about “real life” practices that strayed from their vision of quality care. (7) The plaintiffs were given the opportunity to express their anger and grief to those ultimately responsible for their loved ones’ care. Mediation gives participants a forum in which their feelings can be aired and they can tell their story in a way that is meaningful to them, without the constraints of courtroom evidentiary rules. Similarly, hospital leaders were able to respond to the plaintiffs’ anger and grief without becoming hostile or defensive. (8) The physicians directly involved in the adverse event were not at the table. While we would have preferred that the physicians involved in the events participate in the mediation, they chose not to. Their non-participation raised questions for families who were looking for indications that the doctors cared about what happened. In one case the chief of medicine explained that he had spoken with the former resident that morning and had learned he was still haunted by the memory of what had gone wrong and still grieved for the patient. Undoubtedly it would have been painful for the Rush University Medical Center (“Rush”) is a self-insured 1,000 bed academic facility in Chicago with 1,200 physicians on its staff. Each year Rush is a defendant in 30 to 35 medical malpractice cases. Rush established a mediation program in 1995 to provide a more predictable procedure for settlement of medical malpractice disputes and to lower defense costs (Brown 1998). As of 2003 Rush had mediated 80 cases and reached settlements that ranged from $21,500 to $15,000,000 (Brown 2003, Cooley 2002). More than 80% of the cases were successfully resolved, most in two to three hours. Rush found that it was settling cases at monetary levels consistent with its established reserves and that its defense costs have been reduced by more than half (Brown 1998). The Rush model is what mediators would call “evaluative mediation” (Riskin 2003). The mediators focus on the strengths and weaknesses of the parties’ positions, propose a value range for settlement, and spend little time in joint session. Rush maintains two panels of neutral mediators, one comprised of retired judges and the other of experienced plaintiff and defense medical malpractice attorneys.
Google Sites
Report abuse