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Having litigated many medical malpractice cases and as a mediator of those same cases, I have come across many arguments regarding the efficacy of mediation in the medical malpractice context. Many argue that unless all discovery has been completed, mediation is ineffective. Others say that mediation is effective from the very beginning. Yet others offer blame for failed mediations from a partisan perspective. Regardless of the view of mediation in malpractice cases, it is clear that mediation has become a preferred tool for resolving these type of disputes. Recently, A study of mediation in medical malpractice cases found that mediation is beneficial according to the participants but that a key missing ingredient, however, is the doctors themselves.
The study, co-authored by Carol Liebman, , a professor of law at Columbia Law School and director of the school’s mediation clinic was published in the Journal of Health Politics, Policy and Law. The study evaluated 31 cases from nonprofit hospitals in New York City.
The study revealed that 51% of the cases were settled at mediation and another 16% were settled shortly after; leaving 32% unsettled. The study also found that defense attorneys were less likely to agree to mediation than plaintiff attorneys. However, when attorneys participated, they were satisfied with the process. Moreover, the parties (plaintiffs, insurance and hospital representatives) that were involved were also satisfied with the process.
The authors also found that in no cases did physicians participate in the mediation. According to Professor Liebman, that misses some opportunities to “repair the relationship between human beings.”
When you don’t have the involvement of “the person who is involved in these decisions, day in and day out, you don’t get valuable information,” Liebman says. “A lawyer’s job is to defend the case, not to reshape policy.” Mediation, she says, offers the opportunity to improve patient safety in a way litigation cannot.
This study is interesting because it supports some of the research I cited previously in my report THE TRUE MOTIVATIONS OF PLAINTIFFS IN BRINGING MEDICAL INJURY LAWSUITS.
It is also interesting because in all but a few of my medical malpractice mediations, the doctors do not attend. The study cites reasons such as work schedules and defense attorneys not requiring such attendance. It is also interesting to note that the plaintiffs — to a person — are always surprised when they show up at mediation to find that the doctor is not there. Indeed, in the book cited in my prior post listed above, the study also found that plaintiffs expected to get answers from the doctors at the mediation.
I agree that the commercial mediation process is missing an opportunity to repair relationships and to reflect answers. It also is missing the opportunity for physicians to learn from the process; not just the medical issues, but also to try and understand why they ended up in a lawsuit in the first place. Research has indicated that communications issues are prevalent in the filing of lawsuits against doctors. Indeed, one study found that 85% of malpractice payouts were done by 6% of the physicians. The reason was not the quality of the care, but the quality of the communication. Another study found no connection between the number of lawsuits and the quality of the treatment. According to a study done by Hickson and Associates, ”Physicians who have been sued frequently are more often the objects of complaints about the interpersonal care they provide–even by their patients who do not sue.” If the physician attended the mediation, he or she may get a better understanding in a confidential process about why she got sued in the first place and what she could have done to avoid it.
Often parties are less connected to the impact of litigation until they attend mediation. Indeed, this concept is true for both sides. Having them both present certainly would allow both sides to truly understand what it means to be in litigation and how to avoid it in the future.
Wall Street Journal, December 14, 2010.
By Steven G. Mehta
The question of whether someone can commit malpractice during mediation is recently gaining quite a bit of traction. The answer to that question lies in the philisophial riddle “If a tree falls in a forest and no one is around to hear it, does it make a sound?”
In mediation in many states, and Specifically in California, the answer would be no, there is no sound when the tree falls down. That is because mediation confidentiality has been strictly interpreted in California to prevent any testimony by a mediator or the parties to actions that took place during the mediation.
The ADR Prof Blog recently identified an Oregon case that addresses that very issue. Here’s what they had to say:
Not long ago, a federal court in Oregon gratned summary judgment for the defendants in a legal malpractice claim. The case highlights the stakes involved in expansive mediation privileges. Or put differently, the case highlights the tradeoffs of having limited exceptions to a mediation privilege. For anyone looking for a good set of modern facts to use in a Mediation class on confidentiality, this one will probably serve you well.
Fehr v. Kennedy, 2009 WL 2244193 (D.Or.).
Roughly speaking, the Fehrs were defendants in an action brought by ASH, an LLC of which they were a part. ASH alleged that the Fehrs breached their fiduciary duties to the LLC, engaged in fraud, and in a civil conspiracy. The case went to mediation, and no settlement resulted. The case then went to a bench trial, and the court awarded ASH a judgment in excess of $300,000 against the Fehrs.
The Fehrs then brought suit against John Kennedy, the attorney who represented them in the ASH v Fehr lawsuit. The Fehrs alleged that Kennedy had “failed to advise them of the risk of going to trial and specifically discounted and contradicted the mediator’s assessment of the likelihood of success of ASH’s claims and the consequences of a loss at trial.”
Read More by clicking here.
California courts have not expressly addressed this issue. However, more and more courts are evaluating this issue similarly. See for example, a New York court protected the mediation confidentiality as reported by a New York attorney Andrew Bluestone in his blog.
The concern regarding this issue is that if mediation confidentiality is breached by a claim of malpractice, it would not only address the parties at issue, but would necessarily affect the other party in the mediation. How can someone talk about malpractice without addressing what was said by the other side? Take for example, a claim that the attorney falsely told the client about the risks of trial, and that the truth was only discovered in mediation. Necessarily, some of that information regarding the risks of trial would probably be coming from the other side. In order for the legal malpractice claimant to prove his or her case, she would need to prove what the mediator stated during mediation. Much of that information that the mediator knows about the case is coming from the opposite side. As such, allowing an exception for legal malpractice would potentially breach the confidence of both sides of the participants to the mediation.
On the other hand, allowing mediation confidentiality to remain would potentially prevent legal malpractice claims from being brought. Moreover, allowing such confidentiality could also encourage attorneys to hide their potential malpractice during mediation so as to prevent any evidence being raised.
In my opinion, the confidentiality of the mediation process and the need for a mediator to be able to gain the trust of both sides through such confidentiality outweighs the harm that may occur to the potential plaintiffs when they are unable to prove their malpractice case. Similar analysis has been conducted in the context of attorney-client privilege where certain claims may be proven by resorting to the attorney-client communications but are nevertheless protected and confidential because of the greater benefit in protecting the attorney-client privilege.
By Steven G. Mehta
Recently, I read a blog post regarding attorneys coercing their clients to settle a case. On Victoria Pynchon’s blog, Settle It Now. This made me think about the issue of buyers remorse that can happen in mediation and how to avoid the issue.
This is an important issue there are known cases of clients suing attorneys (or the other side) after having settled the case. For example, Joe Francis of Girls Gone Wild sued to rescind the settlement.
As a litigator and as a mediator I have heard comments that have made me feel that the client had buyer’s remorse in some way or other. Sometimes, a client will ask, “did I do the right thing?” or “did I get a good deal?” Other times, they will outright say, “I shouldn’t have done the deal.”
The reality is that buyer’s remorse happens in some level in many aspects of life. Purchase of personal items, electronics, home sales, and the list goes on. I recently bought a camera and had buyer’s remorse the moment I was using the product. Did I pay too much? Should I have bought a lesser camera that cost less?
First, why does it occur? According to research, people are poor at predicting the true state of their emotions. Second, buyers’ remorse attaches to people’s self confidence about the decision. Often times, mediation and litigation is a foreign environment and the clients fear that they may have made the wrong decision because of lack of knowledge. Buyer’s remorse can also be caused or increased by worrying that other people may later question the settlement and claim to know better alternatives. Another common cause of buyer’s remorse comes from talking to family members and friends, who may mean well, but aren’t happy with the settlement. Often these people will say things like I could have gotten better, or John got double that amount for his case.
It is important to understand that buyer’s remorse is an emotional response to a serious decision.
Steps to Take To Help Eliminate Buyer’s Remorse.
First, in these difficult situations, everyone has a lack of confidence. Now add on whatever insecurities the person generally feels. That is the recipe for Buyer’s Remorse. However, buyer’s remorse can be considered a symptom of the need for confirmation – confirmation that the person made a good decision. In mediation, invariably you will see people who need confirmation that the decision they made is a good one. In fact, I have had people directly ask me, “have I made a good decision?”
Once that person receives some conformation from others, the buyers remorse disappears. As such, after the deal has been put to paper, you can help boost the client’s confidence by giving them confirmation that the deal is a good one. You can’t control what other people will say about the deal, but you can control what you say.
Here are some suggestions to help give your client confidence.
First, build trust and rapport with the client from early on in your relationship. This way when it comes time to making the decision, you already have their confidence.
Second, do not start confirming the sale until the deal is finalized. If you confirm too quickly, the client will only consider that as pressure from you to make the deal.
Third, personalize your confirmation to you. Don’t just say, “you got a good deal.” (Although that is not a bad start) Say “I know that you got a good deal.” Personalizing the comment to you identifies your confidence into the deal.
Fourth, confirm the benefits of the deal. “Now you don’t have to have your deposition taken.” “You don’t have to worry about the trial during the holidays.” Reinforce the decision with the benefits of the settlement that makes it a good decision.
Fifth, congratulate the person on a deal. Have you ever gone to an auction? After the buyer has bid up an extraordinary price for the piece of art, the seller congratulates the bidder and everyone applauses. This is simply a tool to help avoid buyer’s remorse. Do the same thing after the settlement. Call the person a few days later, and congratulate them again. Your call can often eliminate buyer’s remorse before it gets a foothold in the client’s mind.
Sixth, ask the client for a favor such as asking them to pop by when they are in the neighborhood. By doing so, you have also implicitly stated that you are confident in the decision and that you are not afraid of meeting them after deal is done.
Finally, let the client know that she is not the only person to have feelings of buyer’s remorse. Simply letting her know that she is not alone will help her feeling of remorse. She will know that this feeling is normal. Explain that her feelings are so common that there is a name for that moment: It’s called Buyer’s Remorse.
Buyer’s Remorse is a common feeling in mediations. The more you prepare your client for the feeling, the better you will have a chance to avoid the legal implications of having a client unhappy with a settlement.
By Steven G. Mehta
Recently, I’ve been investigating the issues of the different parties perceptions in litigation and mediation. Oftentimes, you will hear phrases such as “this isn’t a lottery,” or “it’s really about the compensation to the family.” On many occasions, the attorneys for both sides will express that they believe the case is about money at the end of the day. However, during many mediations, I have felt that from the plaintiff/claimant’s perspective, it is often more about other things than the money.
In further pursuit of this investigation, I’ve started to read a book entitled Perceptions In Litigation And Mediation: Lawyers, Defendants, Plaintiffs, And Gender Parties by Tamara Relis. This book conducts independent research as well as compiling the prior research in this field.
One of the interesting results of this research is that the aims of the claimants in litigation appears to be substantially different than what the attorneys on both sides perceive. It appears that neither the plaintiff nor the defendant’s attorneys are fully aware of the true nature of the aims and desires of the plaintiffs. Moreover, somewhere along the line, however, it is possible that the claimant’s interests may have changed.
The following charts summarize some interesting findings regarding perceptions of the plaintiff’s litigation aims in medical malpractice cases. This first chart describes the opinions of physician attorneys as to the motivation of plaintiffs in bringing a lawsuit As you can see, most physician’s attorneys believe that money is the primary motivating factor for bringing a lawsuit.
The Second chart asks the same question, but this time to lawyers representing hospitals in medical malpractice case. There is some difference between the perceptions of the physician and hospital lawyers. Interestingly, the hospital lawyers looked at other motivating factors that the physician lawyers did not consider. Moreover, less hospital lawyers focused on money as being the sole consideration.
When Plaintiff lawyers were polled, an even further difference is seen as to the perceptions of what the plaintiffs wanted out of litigation. This may be possible because the plaintiffs lawyers may have a closer connection to their clients than the defense attorneys. It is also interesting to note that no matter what side, each of the attorneys (regardless of side) considered monetary goals as being one of the primary goals of the plaintiffs.
Finally, when the claimants or plaintiffs were polled, they responded very differently than what the attorneys believed. As you can see from the chart, only 24% of the claimants or plaintiffs polled considered money to be the primary or sole focus of why they brought a lawsuit. It is also interesting to note that out of all of the attorneys, only 17% of the plaintiff’s lawyers (and no defense attorneys) mentioned that plaintiffs wanted defendants to admit fault or accept responsibility. Whereas, on the other hand, 59% of claimants stated that they wanted the defendants to admit fault or accept responsibility. Similarly, very few attorneys identified the issue of never wanting the incident to happen again or obtaining answers or explanations as a reason for litigation. Yet both of those categories also were stated in more than 50% of the claimants’ responses. As another example of a disconnect between the attorneys’ and the claimants, not a single physician or hospital lawyer ever mentioned the issue of an apology and only 17% of the plaintiff’s lawyers made such mention. Yet an apology was mentioned by 41% of the claimants.
In analyzing this data, Ms. Relis also made some interesting observations. She stated as follows:
“Plaintiffs’ lengthy accounts of their motives and objectives for litigation demonstrated that their extralegal aims of principle remained important objects of plaintiffs’ desires throughout the processing of their cases. This was notwithstanding their lawyers’ delineations of what the litigation system could provide, the legal reformulation of plaintiffs’ cases, or the passage of time.”
Other research in this field has also found similar results. For example, in 1995 a survey was done of plaintiffs in Britain which found that “prevention of similar occurrences, physician acknowledgment, admissions that something had gone wrong, and answers were objectives most often rated as “very important.” Likewise, another British survey of plaintiffs found that only 17% of claimants described compensation as a reason for suing.
One study in Florida of 127 perinatal injury plaintiffs found that money was only an objective and 24% of the cases.
Other research not involving medical malpractice have also mirrored similar results. For example, a 1998 study of sexual assault claimants found that “most claimants discussed therapeutic as opposed to monetary goals. They frequently wanted to be heard; they wanted validations of their experiences, public declarations of the wrong, closure, retribution, apology, and to deter similar events. One study of small claims courts has also demonstrated that litigation may be used to express feelings, to let off steam, or for moral vindication and may have a symbolic or psychological value.
One set of researchers, Merry and Silbey, argued based upon their research “that it is misguided to assume that plaintiffs choose various paths on the basis of rational calculation of stakes, costs, and probable results alone, as to this must be added the noneconomic reasons for litigating, which include respectability, responsibility and being a good individual.” In fact, according to some researchers, “the fact that the formal justice system does not deal with litigants’ perceived requirements and real objectives, including the nonmonetary agendas, has been found to be a major reason for litigants’ dissatisfaction” with litigation.
Ms. relis also observes that:
“Some plaintiffs may have sought compensation as a signal of being heard and acknowledged or as a deterrent to future conduct. Yet, through litigation, these principles were ultimately manifested in money alone, in a system that was repeatedly described them as one which could only provide financial compensation for their harm. Consequently, plaintiffs who also mentioned pecuniary recompense when speaking of their litigation aims at the same time and vehemently stressed, “it’s not about the money!”
Ms. relis concludes this chapter in her book by indicating that plaintiffs’ primary concerns in litigation were non-monetary. However, the civil litigation system did not provide for remedies relating to the nonmonetary needs and issues. Further, lawyers conditioned their clients on the realities of the legal system preparing them to expect only money instead of nonmonetary issues. As a result of that conditioning, plaintiffs lawyers may also serve to cement their own convictions that financial compensation is either entirely or primarily with their clients seek. In turn, this may affect how the plaintiffs lawyers present the case to the opposite side.
Ms. relis concluded this chapter by stating “Thus, a paradox of legal entitlement is that plaintiffs who engage the power of the legal system lose control of their disputes to that same power as their cases are reformulated, reinterpreted, and renamed, altering meaning and also consequences.”
This research has several ramifications in the mediation and negotiation context. First, it is important for all attorneys to understand that the monetary issues (although important to the defendants) are not as important to the plaintiffs. However, the monetary issues will gain importance as a symbolic statement that reflects the other nonmonetary concerns that were raised by plaintiffs. For example, it is common to hear in a mediation that the amount of money symbolizes the extent that the defendant has taken responsibility for its actions. It would be helpful for attorneys to try to evaluate how to separate monetary issues from the nonmonetary issues to see if there is an opportunity for settlement resolution.
This is not to say that monetary issues will not be relevant in the negotiation or mediation. They will continue to maintain relevance because the matter is now raised the litigation context. As such, it is important to address both the monetary component of resolution/settlement as well as the nonmonetary component.
By understanding the reasons for why litigation has been brought in the first place, the parties can better understand how to arrive at a resolution of that litigation. Given this research, it might be helpful for attorneys to think about some of the following items as well as monetary issues to assist in the resolution of medical injury case:
- Will a genuine apology assist in the negotiation efforts?
- Would it be helpful to have a joint session between the parties where the claimants can ask questions of the defendants? Would such a meeting require the presence of attorneys?
- Can better communications between healthcare providers and the claimants (and claimants family) help to avoid litigation?
- Can the parties discuss how such an incident would be prevented in the future?
I have always believed that nonmonetary issues are often more important to the plaintiffs than the monetary issues. This research has confirmed my beliefs in that regard. it is also important that the monetary issues are often the most important issues to be insurance defendants representing healthcare providers. As such, there is a great chasm that must be filled during mediation in order to arrive at a resolution of both the defendant’s interests as well as the plaintiff’s interests. A mediator who handles these disputes must be able to maneuver between these two countervailing interests if he or she wants to have any chance of resolving the dispute.