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Mediation of Medical Malpractice Cases

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Mediation has become a popular tool for resolving medical malpractice claims.

Trials of medical negligence suits are inefficient. They require tremendous resources and the adversarial aspect of a trial actually impedes the exchange of significant information between the parties. It can easily be twice or three times longer to resolve a medical malpractice claim through a trial versus a mediated settlement.

Mediation is a negotiation with a “neutral” mediator. It is often voluntary and is Non-binding unless, and until, an agreement is reached. Parties who agree to mediate their dispute can terminate the process at any time. The matters discussed at mediation are confidential. A mediator may not be compelled to testify to anything told to him/her in confidence. The parties may select a mediator with both the experience and background to enable them to comprehend all of the medical and legal issues which a case may present.

Oftentimes the mediator can help spot the issues for and against a party’s claims and in so doing, convince a party that their claim entails factual or legal risks which they may not have realized. This process of mediation can help bring parties who began the day very far apart to come closer towards one another’s position by the end.

Mediation provides the patient or their family with an opportunity to air their issues in a formal setting, thereby putting forward their case without the risk and expense of a full-scale litigation. Similarly, the healthcare provider may choose to use a mediator in order to help the victim understand that valid defenses exit, or that despite a bad outcome, no negligence occurred.

The mediator, if experienced in medical-legal matters, can help the parties understand both the strengths and weaknesses of a case in a private setting. By understanding the risks that a case entails, the parties are better able to evaluate their own positions and come to a settlement agreement.

A skilled mediator can help facilitate direct communication between the parties as a neutral third-party. The mediator can help facilitate negotiations, by understanding the positions of each party and conveying them to the other party in a dispassionate manner.

The main advantages of mediation in Medical Malpractice include:

Use of Qualified Mediators

There are legitimate concerns that a jury may not be able to comprehend complex issues of law and medicine which are involved in many such cases. Often jurors are unable to understand the evidence or to carefully evaluate it. Attorneys who mediate complex medical-legal matters usually have been working in this field for many years, and are better able to understand the medical and legal issues these cases present.

Avoiding Risk

All trials involve risk, and medical negligence cases are no exception. Jurors can be led astray and their verdicts can be unpredictable. Two different juries, hearing the same evidence, may render wildly different verdicts based on the intellects and personalities of 6 different individuals.

Medical negligence cases can pose even greater risk than other types of cases for the parties. For plaintiffs, the risks are primarily financial. Generally, substantial sums have already been spent to investigate the facts and retain expert witnesses. Since there is no such thing as a perfect case, and because, statistically, defendants win a higher percentage of verdicts, a defense verdict can financially wipe out both the plaintiff and their counsel. The healthcare provider bears the same financial risks (albeit with insurers bearing the risk), but in addition, if the injuries are compelling, they risk a jury rendering a verdict based on empathy. Healthcare providers also have their reputations at stake. A substantial verdict, even in a jurisdiction such as Maryland (where caps will reduce the verdict post-trial) are likely to be reported in the media. This can lead to disastrous results. Mediation performed privately and confidentially, enables all parties to avoid the risk and exposure of a jury trial.

Since medical malpractice claims often involve complex legal and evidentiary issues, a verdict for one side may often lead to an appeal based on errors of the trial judge. This can result in the risk of reversal and the time and expense of retrying the case several years after the initial verdict.

Reducing Financial Costs

There is likely to be a very substantial cost to take a medical negligence case all the way to trial. Plaintiffs and healthcare providers must hire medical experts to evaluate hundreds, or even thousands, of pages of medical records. Then they must formulate opinions and give depositions and trial testimony concerning both whether there has been a breach of the standard of care and whether the breach caused a particular harm. These costs can easily exceed six figures for a complex case with multiple experts involved. The use of mediation can often reduce these expense significantly, by resolving the case short of trial, and in some cases prior to depositions as well.

Reducing Anxiety

Malpractice trials inevitably take a severe emotional toll on the litigants. Mediation provides a method of avoiding much of the trauma, by confidentially meeting to discuss how best to resolve a case at an earlier stage in the litigation. It is also a sound way to avoid that fact that in a trial, only one party can be victorious. Handled properly, mediation provides a process by which both sides can air their grievances and defenses in a confidential way, while at the same time avoiding the further anxiety which a trial inevitably brings.


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