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The program is similar to Rush model in that its mediators are drawn from the medical malpractice bar (Oxholm 2005). The lines drawn between the two styles represented by the Rush model and the ADR Project model are not absolute. In a particular case, a facilitative mediator may respond to a party’s request for an opinion of the case’s value or, after some hours of work, make a mediator’s proposal. It is less likely that an evaluative mediator will be able to expand her style to include areas of inquiry used by a facilitative mediator. It is important for physicians, hospital leaders, and their lawyers to be aware of the benefits of different mediator approaches, to resist the temptation to select the evaluative approach because it seems familiar, and to choose mediators with the skills to match the needs of the parties and the case. Three years after the Pennsylvania legislature passed the MCARE Act, the national press is still actively covering proposals to curb medical malpractice costs. At the same time, articles appear about patients who have been severely harmed or killed by a medical error. Both problems are serious, both will be difficult to resolve in a way that is fair to physicians and patients, and it is unlikely that either problem can be solved without addressing the other. Error disclosure using mediation skills has the potential to help. Creating an expert communication consult service to plan and facilitate disclosure conversations, providing communication training to heighten physicians’ and other caregivers’ awareness of the complexity of disclosure conversations, offering apologies when appropriate, and using facilitative mediation soon after an error all have the potential to decrease the volume of litigation, reduce the cost of settlement, and turn unhappy events into opportunities to learn from patients and families how to improve care and safety. When medical care does not proceed as expected, disclosure of information to patients and their families is the right thing to do. Moreover, disclosure increasingly is required by ethical, self-regulatory, and statutory mandates. In Pennsylvania, the MCARE Act’s disclosure requirement provides impetus for improving communication between physicians and patients reconsidering litigious, defensive responses to medical error, and experimenting with non-litigation dispute resolution processes such as mediation. States with laws that protect apologies of responsibility give added support to physicians who want to take responsibility for their actions, and encourage the type of communication which can provide solace to patients. It is too early to measure the impact of the MCARE Act’s disclosure requirement on medical malpractice litigation. If disclosure is made with skill and compassion, includes an appropriate apology, and generates a fair offer of compensation and steps to avoid recurrent harm, we predict that litigation will decrease and patient safety will improve. But old habits are hard to shed. Strong, persistent efforts by hospital leaders will be required to change the institutional and professional response to an error that is made or a claim that is filed. Duty to notify patients: An appropriately trained person designated by each licensed facility shall inform each patient, or an individual identified pursuant to s. 765.401(1), in person about adverse incidents that result in serious harm to the patient. Notification of outcomes of care that result in harm to the patient under this section shall not constitute an acknowledgment or admission of liability, nor can it be introduced as evidence. 1. Each medical facility that is located within this state shall designate a representative for the notification of patients who have been involved in sentinel events at that medical facility. 2. A representative designated pursuant to subsection 1 shall, not later than 7 days after discovering or becoming aware of a sentinel event that occurred at the medical facility, provide notice of that fact to each patient who was involved in that sentinel event. d. A health care facility shall assure that the patient affected by a serious preventable adverse event or an adverse event specifically related to an allergic reaction, or, in the case of a minor or a patient who is incapacitated, the patient's parent or guardian or other family member, as appropriate, is informed of the serious preventable adverse event or adverse event specifically related to an allergic reaction, no later than the end of the episode of care, or, if discovery occurs after the end of the episode of care, in a timely fashion as established by the commissioner by regulation. The time, date, participants and content of the notification shall be documented in the patient's medical record in accordance with rules and regulations adopted by the commissioner.
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