Hyman, a former adjunct research scholar at the Columbia Law School and now with the Medical Mediation Group, notes that it’s likely attorneys are standing in the way. “The lawyers are usually the gatekeepers in determining whether or not their clients should participate in a mediation. My sense is that the attitude of the lawyers, who are litigators, is shared by their clients, the hospital leadership and the insurers. The defense litigators, who handle medical malpractice lawsuits at least in New York, for the most part do not seem as sophisticated about the benefits of participation in mediation as defense lawyers in other types of cases, such as employment.”
The authors cited research that found patients expect an apology after a medical error, and that most doctors want to oblige, but they—and their lawyers—refrain from doing so out of fear of legal liability. However, the confidentiality of mediation would obviate that.
Moreover, the absence of the physician “minimizes the chances that mediated discussion of medical errors by patients, families, and health care providers can foster learning that leads to improved quality of care,” according to the authors. They suggest that future research “might explore the connection between effective disclosure conversations and a health care facility’s willingness to participate in interest-based mediation of medical malpractice lawsuits given they require a similar commitment to communication among those directly affected by the events."
That’s something Hyman would be interested in exploring–but it would require a hospital or health system willing to cooperate fully. “We would be delighted to find willing participants, which means a hospital or health care system interested in full disclosure and interest-based mediation,” she says.