Thursday, March 13, 2008

Doctors & Lawyers Mediating Malpractice Claims

Here's a great article on the training process for doctors and lawyers involved in a new mediation project to resolve malpractice claims. The article is from One of the things that makes this so unique is that the doctors themselves are being trained as mediators, which means they are being trained to listen to patients in a whole new way. I think this is wonderful idea and can only help patients as well as doctors. (Illustration by Myron Macklin / Used with permission.)

Doctor-lawyer project tackles malpractice
By Stacey Burling


Doctors and lawyers in Montgomery County are doing something unusual: working together.

Members of the county's bar association and medical society, along with Abington Memorial Hospital, tomorrow are launching a pilot project they hope will keep more malpractice disputes out of court.

Lawyers and doctors will work in teams to mediate conflicts between patients and the hospital or doctors. The hope is that the new approach will resolve problems more quickly and humanely, without the demonization of both sides that can occur in malpractice battles.

Whether it will save money remains to be seen. Project leaders say that is not the primary goal.

John J. Kelly, Abington Memorial's chief of staff, said he wanted to avoid the "harshness" of litigation. "At the end of the day, I think everybody walks away feeling like it's a much more productive process, and it's a healing process," he said of mediation.

"I think litigation makes everything so much more painful for everyone, and I'm not sure healing ever occurs."

Planning for the project started three years ago after a nudge from the state Supreme Court. It encouraged counties to look at alternatives to traditional court battles as doctors threatened to leave Pennsylvania because of skyrocketing malpractice-insurance rates. Not much has happened elsewhere in the state, but doctors and lawyers here pursued it because "there's got to be a better way to do things than the way we've been doing them," said Mark Lopatin, a rheumatologist, who led the medical society's part of the effort.

People on both sides say the current system is emotionally draining, even when you win.

"Clients hate courtrooms," said Robert Morris, president of the Montgomery County Bar Association. "I haven't ever had a client that wanted to get in the witness stand."

The project deals with unhappy patients and their families through a two-step process. In the first, doctors and nurses at Abington have been trained to listen to such patients and explain what happened in as much detail as possible. Project leaders say many people who sue do so primarily to find out what happened.

If that is not enough, patients can move to mediation, a process that helps them hammer out a settlement with their doctors. The mediator shuttles between the sides, bringing their positions together. Unlike a judge or arbitrator, the mediator does not decide the case. Instead, the patient and doctor - or more likely their attorneys - determine an acceptable outcome. Usually that involves money, but patients also often want an apology and assurance that steps will be taken to prevent future mistakes.

If the sides are still fighting, patients still have the option of going to court.

In this region, Drexel University College of Medicine's doctors have the longest-running mediation program. Theirs often uses a team approach, pairing lawyers who typically represent patients with those who defend doctors. Abington's new program creates even more unusual teams. A lawyer with health experience will be the lead mediator, and a doctor will be his "medical partner."

"It's precedent-setting, this project," said Jane Ruddell, a former health-system lawyer who now runs a company devoted to alternative dispute resolution. "It's really trying to change a culture."

Ruddell ran a training session last week in the bar association's Norristown office to train about 30 doctors and lawyers to be mediators. Many of the lawyers had previous experience with mediation, but the daylong program was an eye-opener for the doctors, who understood for the first time how hard and time-consuming it was to sort through strong emotion and find common ground.

In a training exercise, the doctors and lawyers were split into groups for some role-playing. Abington Memorial obstetrician-gynecologist Robert Michaelson played the mediator for one. The bar association's Morris was an angry woman with cancer, and Mark Pyfer, president of the Montgromery County Medical Society, was her even angrier husband.

The patient in the case had had foot pain, which the doctor thought was caused by a pinched nerve. The patient decided not to have surgery the doctor recommended and later lost part of her leg after the cancer was discovered.

Michaelson got into trouble almost immediately, waiting too long to separate the warring parties. He ran out of time without getting close to a settlement, but Morris, who is a trained mediator, and Pyfer, a novice, proved a good team.

"I thought she was negligent because she never paid much attention to me," Morris said petulantly.

"Dr. Reynolds can say she's sorry, but I don't think she has any idea what it's like to go through life with one leg," Pyfer chimed in. Then he asked for $10 million.

Doctors came away from the experience understanding why the lawyers will take the lead in mediations, at least in the beginning.

"The most striking thing about this was . . . how difficult this is," said Lopatin, the rheumatologist.

Frank Murphy, a lawyer who attended the training, said it might be harder than the hospital anticipated to avoid malpractice filings and to persuade lawyers to be totally open with one another. Legal-filing deadlines, strategy, and payment agreements give lawyers an incentive to file in court and, sometimes, to stretch out the proceedings.

Advocates of mediation say it is often cheaper than court because there are fewer exhibits and medical experts to pay for.

Participants usually sign confidentiality agreements, a step that supporters say spares everyone embarrassment. The downside of the secrecy is that mediated cases create no legal precedent and leave no public record. Monetary settlements are reported to the National Practitioner Data Bank. But its information is available only to hospitals and professional groups, not consumers.

Some doctors also worry that mediation will be just one more step on the way to court. That has not been Drexel's experience. Of 40 cases that have gone to mediation, only three were unresolved.

Those involved in the Montgomery County experiment say it is more likely to give patients what they really want: early action, an apology, and information. "Patients want answers. That's what they want more than anything," said Sheila Stieritz, a former director of patient safety at Abington Memorial, who consulted on the pilot project. "And if it's something really serious, most patients want it not to happen to anybody else."

More Reasons to Try Mediation

If you've read any of my prior posts, you probably don't need more convincing that mediation is a great way to solve a dispute while saving time and money or that mediation can offer more creative solutions than the court can to deal with complex issues and problems. But in case you're still not sure mediation is worth your effort, read on for excerpts from various articles from the internet:

From the Tucson Citizen: While some parties are relieved to be introduced to mediation, Quiros said, others continue to balk. "People often feel mediation is touchy-feely or they give up control," Quiros said. "It's quite the opposite. Even though there is a third party facilitating, the control of the outcome is completely in the party's hands - there's no judge, no jury."

From the Pittsburg Post-Gazzette: Mediation is private and confidential. Most often the mediator is an attorney, knows neither party and has no stake in the outcome. Nothing said to the mediator in mediation is permissible in a court of law.

From the Harrisonburg, Virginia Daily News-Recorder: Every March, Virginia celebrates one of the most effective, inclusive and thoughtful methods of resolving conflict - mediation. Mediation is a way for people to come together and work things out. Trained mediators help people to bring issues to the table and to sort them out...Mediators simply guide the conversation without taking sides or telling participants what to do. Mediators help people through the stress, anger, confusion and suspicions of the other party to find solutions.

Business Day Interview of mediator Wahida Parker: [] At Equilaw we believe that it’s multi-tiered dispute resolution - that’s a phrase that was coined by Professor Butler. What we mean is it’s one step in the process to resolving disputes - if a mediation is not settled, and our statistics show that 80% of matters that are mediated on are settled at the mediation [] the remaining 20% then can elect either to go to court, or to go to arbitration. That is why we say it’s a multi-tiered dispute. If you say alternate that means it’s the other choice - a completely different choice - and we don’t agree with that stance.

And, from the Edwardville Intelligencer: "...people come out of [mediation] having controlled their fate and agreeing to something, rather than having a jury decide. A lot of times people think the jury was wrong, so at least [in mediation] the parties decided."

Thursday, March 06, 2008

Mediating Elder-Care, Conservatorship & Guardianship Issues

Mediation continues to grow in popularity, particularly in family related disputes like guardianships and conservatorships. I have pasted below the full article on Mediating Elder-Care Disputes from the Wall Street Journal.

Mediating Elder-Care Disputes
March 2, 2008

It's hard enough for families to navigate the complicated and emotionally charged decisions related to elder care when everyone gets along.

Throw in a family with tensions or outright hostility and it's no wonder that disagreements sometimes end up in court, an expensive proposition that can easily magnify divisions.

Another way to handle these problems is growing in popularity: mediation.

A mediator is sometimes brought in at the order of a judge seeking to settle a dispute without taking it to a jury. But elder-care practitioners are urging more families to take the step voluntarily, especially in disputes over how to handle guardianship for family members who can no longer care for themselves.

Mark Dennen's family was embroiled in nearly two years of litigation centering around guardianship for his father, then 92 years old, when a judge ordered the case sent to mediation.

"Everybody brings in all this emotional baggage and the mediator helps bring things into focus," Mr. Dennen says. "It's designed to get to a solution."

The mediation brought the legal battle to an end just months before Mr. Dennen's father passed way.

Agreement Is the Aim

The basic idea behind mediation is that a dispute is resolved through an agreement among the parties, instead of a resolution mandated by a judge or negotiated by attorneys. The role of the mediator -- usually an attorney or someone with a background in social work -- is to facilitate communication and informed decision making.

The cost of mediation varies around the country. In big metropolitan areas, it can easily cost $300 to $500 an hour, although it's possible to find dispute resolution centers that are significantly less expensive.

Robert Rhudy, a former legal-aid attorney turned mediator, has championed the use of the practice to resolve elder-care disputes in Maryland. "In mediation, everybody who is affected by the situation has an opportunity, in a neutral and confidential setting, to tell their story," he says. Whenever possible, that includes the elderly family member.

Defusing Tensions

The mediator can help ease communications among family members for whom the elder-care dispute may reopen decades-old wounds.

"Things like 'Mom always liked you better' and brothers and sisters who haven't gotten along since they were three years old come to the fore," says Mr. Rhudy.

Common candidates for mediation are disagreements between family members who live far away and a sibling who lives closer to the elder and may have a different assessment of that person's needs. Sometimes the disputes are between children and elderly family members who have their own view of where they should be living and who should be caring for them.

Mediation can be used to settle disagreements over living arrangements, how finances should be handled, who should be granted power of attorney, and even visitation rights among squabbling siblings. Agreements often specify the kinds of information, especially financial and medical updates, that will be provided to family members who live far away.

The personal nature of these disputes is what makes mediation helpful, says Forrest Mosten, a Los Angeles attorney who has been a mediator for nearly three decades. "The remedies that a court offers are very limited...but in mediation, an apology may end the dispute."

Mediation also allows for informal or even interim solutions, Mr. Mosten says. "You can try things out and see how they work," he says. For example, instead of immediately pursuing a formal guardianship, one child could become a co-signer on a bank account. "If that works, then you don't have to go any further."

There are some times when mediation alone isn't sufficient, says Nina Weiss, an attorney and mediator in Princeton, N.J. If a guardianship is in order, for instance, that must be ordered by the court system.

The mediation process for elder-care decisions can -- and most say, should -- bring in experts such as social workers, estate-planning specialists and health-care professionals who would typically be called upon as part of a court case. "The courts will recognize the same issues....It's just that you avoid the expense" of litigation, says Joseph Mahon, an estate-planning attorney in New Jersey (who isn't also a mediator).

Finding a Mediator

One challenge facing families looking for mediation help is that there is no formal licensing or credentialing for elder-care mediators, notes James Bergman, a co-director at the Center for Social Gerontology, an Ann Arbor, Mich., nonprofit group that has been a longtime advocate of elder mediation.

"Anyone can hang a shingle out and say they're an elder mediator," he says.

But there are plenty of experienced mediators, so it's largely a matter of tracking down those with experience in the area and, importantly, a mediator the parties feel comfortable with. One place to start are local nonprofit mediation groups, such as the Montgomery County Mediation Center in Eagleville, Pa., which can generally be located online. There are also state organizations, such as the New Jersey Association of Professional Mediators.

Some states have lists of mediators officially approved by their courts. And online, the Association for Conflict Resolution offers the public the ability to find mediators from among its members at

Also online, and offer names of mediators (who pay small fees to be listed).

Write to Tom Lauricella at

Click here to go directly to this WSJ article.