Document Type

Article

Publication Date

2011

Abstract

In the past decade, the United States healthcare system has begun to use mediation to facilitate communication between patients and physicians after an adverse medical event, to ease tensions among members of care-giving teams, to resolve medical malpractice claims, and to help family members and medical professionals make awesome and wrenching decisions at the end of life. Implementation of the Patient Protection and Affordable Care Act of 2010 will produce new controversies and increase the need for mediation. Patients, families, physicians, nurses, other healthcare professionals, and administrators will require help managing the disagreements that arise as they adapt to the altered healthcare system.

The Department of Health and Human Services understands this. The Agency for Healthcare Research and Quality recently announced seven grants as part of the Patient Safety and Medical Liability Initiative. Four grants, totaling $10 million, went to programs focusing on the interactions among patient safety goals, the litigation system, and physician-patient communication. Intelligent use of mediation and mediation skills can help us achieve a safer and more efficient healthcare system. But for mediation's potential benefits to be obtained, government officials and healthcare professionals must decide how conflict should be handled and what the role of lawyers should be when difficult physician-patient communications are required. The potential benefits from mediation are significant: improved patient safety; teamwork; relationship repair; and financial savings for physicians, hospitals, and patients. But achieving those benefits requires understanding of what recent scholarship has reported about successful and unsuccessful uses of mediation in the world of healthcare and sophisticated training of healthcare professionals, so that they can make informed decisions about when to use mediation and how to participate effectively in mediation.

This article will review two recent studies evaluating the use of interest-based mediation to resolve medical malpractice claims. The first studied cases brought against the New York City Health and Hospitals Corporation (the HHC study); the second, Mediating Suits against Hospitals (the MeSH study), studied cases brought against private New York City hospitals. The article will then consider how non-participation of physicians in mediations diminishes opportunities to achieve noneconomic goals that plaintiffs desire.

Disciplines

Health Law and Policy | Law | Legal Ethics and Professional Responsibility | Torts

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