Mediation helps hospitals steer clear of courtrooms

By Joyce Gannon, Pittsburgh Post-Gazette

The University of Pittsburgh Medical Center’s pioneering formal mediation process not only helps settle malpractice claims before they go to court, but it also allows both sides to think about creative ways to work things out.

Besides monetary awards, patients have had plaques, monuments or hospital rooms named in their honor.

“It’s a nontraditional way of doing things that you don’t do through the courthouse,” said Richard Kidwell, associate counsel and director of patient safety and risk management at UPMC. He helped launch its mediation program in 2004.

An individual who believed that doctors misdiagnosed his fractured bone when he showed up at an emergency room operated by UPMC received a monetary settlement, but also had the opportunity to discuss the situation with the hospital staff. UPMC subsequently expressed a willingness to educate its staff to prevent a similar recurrence.

It’s hard to track whether the process has an effect on the financial settlements that hospitals pay out to patients and families because those amounts typically are kept confidential.

Jury Verdict Research said the median medical malpractice settlement was $1 million in 2004, the latest year for which it had data, compared with a median jury award of $1.045 million.

Mr. Kidwell estimates an average $50,000 in legal expenses is saved in each case that is mediated rather than tried in court.

Neil Rosen, a Pittsburgh attorney who specializes in medical malpractice and personal injury, has settled a number of cases through mediation with UPMC.

“It’s beneficial for the patient and UPMC because litigation is very, very expensive,” he said.

Also, many of his clients are seeking an apology and get it through mediation.

“In one of my cases, my client had something very, very bad happen, and she was invited to come to UPMC and speak to a new influx of medical residents about what happened to her so they would learn.

“This accomplished a goal for this particular woman to make sure this wouldn’t happen again.”

From late 2004 through mid-January, UPMC mediated 77 cases and settled 68 of them, said Mr. Kidwell, a national expert in hospital mediation who developed a mediation program for the Johns Hopkins Medical Institutions in Baltimore prior to coming to UPMC.

The UPMC program grew out of efforts by the state Supreme Court and Gov. Ed Rendell to reduce the costs of medical malpractice suits, said Karen Engro, an attorney and mediation specialist whose multiple roles include serving as the alternative dispute resolution coordinator for the U.S. District Court in Pittsburgh and as a consultant to UPMC for its mediation program.

“The perception was [the cost of medical malpractice cases] was a particular problem in our state,” she said.

At UPMC, patients sign an agreement prior to treatment saying that if they later pursue a claim against the facility, they must attempt to resolve it through mediation before filing a lawsuit. The patients do not waive their rights to a jury trial if mediation fails. The process is voluntary and confidential, said Ms. Engro.

UPMC’s mediation system involves one mediator who listens to statements from plaintiffs, defendants and their attorneys in a joint session prior to working with each side individually to reach a resolution.

“It gives the patient his or her day in court because they sit down across from us,” said Mr. Kidwell.

For the hospital, he said, it provides a setting to discuss what happened, why it happened and how the institution can implement changes. Mediation also allows the hospital to apologize for errors, “something we can’t do in court,” Mr. Kidwell said.

Since 2006, UPMC also has provided “intermediation” as a step toward early resolution of disputes. If a patient files a complaint while still in the hospital, it typically goes to the patient relations department, said Chaton Turner, UPMC assistant counsel. If the patient isn’t satisfied with the staff’s initial response, the hospital will provide early mediation, which has resolved nine cases to date, she said.

Carol Liebman, a mediation expert at Columbia University Law School in New York, characterized UPMC’s program as “terrifically sensible and sophisticated” and said the medical system was among a handful of institutions nationwide that have pioneered the practice. The others include Johns Hopkins, Drexel University and the University of Michigan.

“Mediation is growing but not nearly as fast as it should be,” she said. “In general, it’s a better way to solve conflicts.”

But there are times the process doesn’t work, Mr. Rosen said.

“If there is a legitimate difference of opinion regarding the liability of the claim and the value of a claim and often times when you can’t have a meeting of the minds, you have to go across the street and try your case. That’s why a jury system exists.”

While mediation saves time and money, the system doesn’t keep UPMC out of the courtroom altogether, Mr. Kidwell agreed.

“We still try cases where we think we didn’t do anything wrong,” he said.
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