Mediation can avert malpractice suits

Commentary. By Leonard J. Marcus, PhD, and Barry C. Dorn, MD, amednews contributors. June 17, 2002.

COMMENTARY

Observations on the state of medical practice and medical life

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As would be expected, the headline nature of the crisis has spawned a plethora of potential solutions, many based on law. Therefore, laws have been proposed to curb the legal process and limit the amount of settlements. These efforts at tort reform are laudable and long overdue. But it would be a mistake to limit the discussion to just matters of changing the law.

Medical practice, bottom line, is about doctors giving, and their patients receiving, a quality, life-saving service. A medical malpractice case most often results from something going wrong in that process or in its outcome. That problem is then transformed into a dispute over money -- the plaintiff wanting a high figure and the defendant or his or her insurer wanting to provide less than what is demanded. Enter the civil justice system and with it an elaborate, expensive and time-consuming process to manage and resolve the dispute.

But to assume that this crisis is merely a matter of money is to miss a number of other potential solutions. This might be the opportunity to consider finding new ways to resolve disputes. These options could contribute to efforts that improve the quality of patient care so that, in the long run, there are fewer cases headed toward legal confrontation.

The consideration and adoption of effective dispute-resolution options is now hindered by assumptions about patients, communication and quality.

Physicians are often counseled not to talk to patients after a bad outcome. It is assumed that patients are only out to get them. The process assumes the tone of little more than a "blame game." Here are three projects that counter these assumptions.

Decreasing attorney involvement

In 2000, the COPIC Insurance Co., based in Denver, initiated an "early intervention and conflict resolution" program for its insureds. The program -- designed by Dawn Prime Watson, RN, a claims representative with specialized dispute-resolution training -- involves all nonsuit, no-attorneys-involved occurrence reports managed through the claims department.

The intent is to decrease the incidence of attorney involvement and ultimately litigation. With coaching from Watson, physicians are counseled to speak directly with the involved patient.

In these discussions, they are encouraged to acknowledge the incident, offer an apology and, in some instances, provide reimbursement for minor medical expenses. Most important from a patient safety and quality improvement perspective, the physician shares with the patient steps taken to reduce the likelihood that this incident will happen to others.

The results are impressive. In the year 2000, 141 cases were included in the program. Of those, only eight converted into a claim, and of those, only one converted into a lawsuit, which was later dismissed. Payments were made on 28 of the cases, totaling $37,056.

In 2001, the program expanded to 308 cases, of which only one converted to a claim. There were no lawsuits in the group. Payments were made on 27 cases, for a total amount of $33,820. An independent and conservative review of those 2001 cases valued them at more than $2 million.

Watson reports that in most cases, the patients continue in the care of the physician after these discussions and even refer other patients to the physician.

The second project is the "Voluntary Mediation Program of the Massachusetts Board of Registration in Medicine."

The project is on hold because of the state's budget crisis, but when it was in operation, it was used to bring together patient and physician for a mediated discussion. Through these mediations, we found that, after a problem in the course of care, patients or family members have three primary interests:

To learn what happened.
To receive an apology or acknowledgment from the caregiver.
To know that steps were taken to reduce the likelihood that the problem would recur.

Not only did these mediated discussions provide both sides the opportunity to lay the dispute to rest, they provided a powerful quality improvement contribution.

The third project is the complaint mediation project of the College of Physicians and Surgeons of Ontario. Cases referred to mediation generally involve isolated incidents that do not warrant public sanctions and that appear amenable to a direct discussion between the patient and physician. The mediator arranges meetings with both parties, separately or together, in person or via telephone.

Over a five-year period, of the 266 cases referred for mediation, one or each of the parties declined in 55 of the cases. The project attained an 84.4% settlement success rate for those cases brought through the process.

These brief reports provide important lessons:

Early conflict resolution can save money.
Meetings between patient and physician can contribute meaningfully to quality of care and patient safety enhancements.
A vast majority of cases can be resolved through the systematic use of mediation.

Much more needs to be learned about the use, implications and potential contributions of mediation and other forms of alternative dispute resolution. In part, opening the door to this learning will require those with a stake in the process and outcome to move beyond the fears and apprehensions of bringing patient and physician together into the same room, even for a carefully structured conversation.

Saving money would be one good reason to more systematically explore the possibility. But an even better reason would be for the improvements it could provide to the mind-set, viability and experience of now being in the practice of medicine.

Note: This column originally appeared in print as "Renegotiating Health Care."

Dr. Marcus is director and is associate director of the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health, 617-496-0867. Dr. Dorn is CEO of Health Care Negotiation Associates 781-861-6116. The paperback version of their book, "Renegotiating Health Care: Resolving Conflict to Build Collaboration," is available for through Jossey-Bass Publishers, 800-956-7739.