By: Carrie L. Kleinjan
(law student at Widener University School of Law. She will graduate in May of 2005. Ms. Kleinjan resides in West Chester, Pennsylvania and her email address is carriekleinjan@yahoo.com
INTRODUCTION
Mediation
usually is a voluntary process where the parties to a dispute, with help of an
impartial third-party (a mediator), attempt to work towards a mutually
satisfactory solution. By agreeing to
mediate, the parties agree to negotiate in good faith, in an attempt to settle
their differences. Since mediation is a
voluntary process, the mediator does not have the power or authority to force
the parties to accept an agreement.
As a tool to
settle litigation between plaintiffs and defendants, mediation can reduce the
number of malpractice cases that go to trial and avoid the risk of high jury
awards for plaintiffs, while also greatly expediting case resolution and saving
on protracted legal costs for plaintiffs and defendants.
The following
information is intended to guide individuals in considering mediation as a
means for resolving a medical malpractice action. This information is mainly applicable to
medical malpractice lawsuits in Pennsylvania
PENNSYLVANIA
LAW
For an excellent summary of medical
malpractice law in Pennsylvania, see: http://www.mcandl.com/pennsylvania.html This site, put together by the law firm
McCullough, Campbell & Lane explains the Statutes of Limitation,
Contributory or Comparative Negligence, Joint and Several Liability,
Contribution, Vicarious Liability, Expert Testimony, and damage caps, and other
information relevant to a medical malpractice action.
The Statute of Limitations is important to know. For an adult bringing a claim for medical
malpractice, the suit must be filed within two years of the incident. An exception to this requirement is the
discovery rule. For example, where a
doctor fails to remove a surgical sponge following an operation, the statute of
limitations may not begin to run until the sponge is discovered through an
x-ray or exploratory surgery. http://www.mcandl.com/pennsylvania.html
In Pennsylvania, a medical malpractice victim may be compensated for
pain and suffering. This includes
suffering from discomfort, disfigurement, embarrassment, humiliation, or not
being able to enjoy the simple pleasures of life. There are currently no caps in medical
malpractice cases. The jury decides the
verdict amount based on the evidence presented.
http://www.mcandl.com/pennsylvania.html
Where a child is the victim of medical malpractice,
the law extends the time for filing until the age of 18. http://www.mcandl.com/pennsylvania.html
Many of the laws in
Pennsylvania governing liability for medical malpractice were substantially
modified on March 20, 2002, by the Medical Care Availability and Reduction of
Error (MCARE) Act, 2002 Pa. Laws 13 (codified at Pa. Stat. Ann. tit. 40,
§§ 1303.101 to 1303.910 (LEXIS 2003)).
http://www.mcare.state.pa.us/mclf/site/default.asp
MCARE was
established to ensure reasonable compensation for persons injured due to
medical negligence in Pennsylvania. MCARE’s
general purpose is to provide for and administer sources of funds to pay for
judgments, awards, and settlements in medical malpractice claims against
participating health care providers and eligible entities, which exceed primary
limits of coverage provided by primary professional liability insurance
policies. http://www.mcare.state.pa.us/mclf/site/default.asp
Participation in
MCARE is mandatory for each health care provider who renders 50% or more of his
or her professional medical services within Pennsylvania.
Such health care providers must obtain not only basic (primary)
professional liability insurance coverage, but he or she must also obtain
excess professional liability coverage by paying premiums to MCARE. http://www.mcare.state.pa.us/mclf/site/default.asp
For the calendar
years 2003 through 2005, the total required limit of medical professional
liability coverage for participating health care providers, excluding
hospitals, is $1,000,000 per occurrence, and $300,000 per annual policy year
aggregate. For hospitals, the required
total limits are $1,000,000 per occurrence, and $5,000,000 per annual aggregate. http://www.mcare.state.pa.us/mclf/site/default.asp
Under Act 13,
each health care provider is required to have $500,000 in primary coverage per
occurrence and $1,500,000 per annual aggregate.
Each health care provider is also required to purchase $500,000 in
excess coverage per occurrence from MCARE and $1.5 million per annual aggregate
in excess of the primary coverage. MCARE
provides hospitals coverage of $500,000 per occurrence and $1,500,000.00 per
annual aggregate in excess of the primary coverage. http://www.mcare.state.pa.us/mclf/site/default.asp
Thus, whenever
the medical malpractice lawsuit involves catastrophic damages in excess of
$500,000, the MCARE Fund will be involved with negotiations and/or
mediation.
CURRENT
STATE
OF AFFAIRS
In recent years
the cost of professional liability coverage has dramatically risen for health
care providers in Pennsylvania.
Doctors are claiming they cannot afford to practice in Pennsylvania.
Some doctors are leaving Pennsylvania to practice elsewhere in the
nation. In response to this medical
malpractice “crisis,” Governor Rendell has put together a medical malpractice
reform package.
http://www.ohcr.state.pa.us/OHCR_index.htm
Governor
Rendell’s reform package encourages the use of the Chicago Rush Hospital
Mediation Model for early settlement of medical malpractice actions. This reform package also encourages insurance
carriers, including MCARE, to participate in early settlement/mediation
discussions where all parties consent.
http://www.ohcr.state.pa.us/OHCR_index.htm
The Chicago Rush Hospital model of mediation involves
simultaneous participation of practicing medical malpractice litigators from
both the plaintiff’s and defense sides as neutral, co-mediators. The approach
has an impressive track record in Chicago and is being integrated with the risk management
programs of a medical school in Philadelphia and a medical malpractice insurer in Pennsylvania, while other health systems and insurers are
exploring its use. http://www.physiciansnews.com/cover/404.html
ALTERNATIVE DISPUTE RESOLUTION IS PROMOTED IN PENNSYLVANIA,
BUT CANNOT BE MANDATED FOR CASES IN EXCESS OF
$50,000.00
Pennsylvania courts may adopt rules requiring compulsory
arbitration of small claims, but not where more than $50,000 is at issue
($25,000 in some jurisdictions). 42 Pa. Cons. Stat. § 7361 (LEXIS 2003). A
former Pennsylvania health care arbitration statute
providing for exclusive jurisdiction over medical malpractice claims by an
arbitration panel was held unconstitutional as an impermissible infringement
upon the right to a jury. Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980). http://www.mcandl.com/pennsylvania.html
While mediation cannot be mandated in Pennsylvania for cases in excess of $50,000, it
certainly is being promoted by the Governor and the Courts. If all parties consent, then ADR may be
pursued.
BENEFICIAL
ASPECTS OF ALTERNATIVE DISPUTE RESOLUTION
Trial is the foundation of our justice
system. The traditional litigation
process makes resolution of a medical malpractice action a distant event with a
huge price tag. Not only is the price
tag high, but the litigation process is stressful and the emotional costs can
be significant. Sheila M. Johnson, A Medical Malpractice Litigator Proposes
Mediation, 52 DRJ 42 (1997).
Litigation is based upon the war
model. The parties muster an army (the
firm), appoint a general (the lead trial lawyer), choose a battleground (the
court with jurisdiction), stockpile the ammunition (discovery), engage in
battles (the motion practice), participate in a required peace effort
(pre-trial settlement conference), blow each other to bits (the trial) and declare
a victor (the verdict). Id. One
side “wins” but all it wins is money or the right to keep money. Along the way the parties are emotionally and
financially exhausted. Id.
In a jury trial, nothing is
guaranteed. In contrast, mediation makes
no determination of who is right and never declares a “winner.” Id.
There are many advantages of taking a medical malpractice dispute out of
the war model. Mediation gives the power
to the parties to resolve the dispute at an earlier and less expensive point in
the process. While it is true that most
lawsuits usually settle before trial, that usually does not take place until
the eve of trial. Id. By
then years have gone by, a great deal of money has been spent, emotions have
been exhausted and wounds are still open.
Id. Cases destined for
settlement will do so earlier with mediation.
With mediation the parties are given the
opportunity to vent emotions. The
patient may be experiencing the physical pain and limitations of an injury or
the loss of a loved one. Id. He
may be feeling anger, fear, bitterness, helplessness, frustration, confusion,
mistrust of the medical profession, and the need to vent these emotions. Id.
Traditionally, once there is the threat or possibility of litigation,
doctors are advised to not admit any wrongdoing to the patient. Communication between the doctor and patient
breaks down and the patient becomes angry.
The patient may want an explanation for what happened or even an
apology. The patient would not be able
to satisfy such a need with traditional litigation.
Mediation provides a means to the prompt
resolution of a claim. Not only can the
patient limit the amount of money spent on litigation and emotional turmoil,
but the patient would be able to secure needed funds to pay for ongoing medical
treatment or to pay for medical bills.
The healthcare provider sued or
threatened with suit also experiences a range of competing emotions, needs, and
interests. Id.
He may be feeling anger, fear, resentment, and bewilderment. He may be concerned about his reputation, the
disruption of his practice, the impact on his staff privileges, and the impact
on his professional liability insurance.
Id. Similarly a hospital
defendant may be concerned about its reputation, good will, setting precedent,
the costs of litigation, and the long-term risk management issues. Id.
It is to the advantage to all healthcare
providers to promptly resolve medical malpractice claims. This way the health care professional is
spared the prospect of having to be embroiled in a long running lawsuit which
would require time consuming depositions and court appearances. A prompt resolution through mediation would
also allow the healthcare provider to negotiate for confidentiality of the
resolution. This would allow the
healthcare provider to avoid harm to his reputation and would result in less
disruption to his professional practice.
Another article, which aptly describes
the benefits of mediation, including special considerations for medical
malpractice cases was authored by Rita Gitchell and Andrew Plattner, Mediation: A Viable Alternative to
Litigation for Medical Malpractice Cases, 2 DePaul J. Health Care L. 421
(1999).
TIPS
ON REPRESENTING CLIENTS IN MEDIATION
- Mediate Wisely Attorneys do not need to complete
discovery to effectively mediate a case.
Discovery is expensive.
Instead of waiting to begin mediation at the close of discovery,
develop a discovery plan that focuses on what you and your opposing
counsel need to evaluate in the case to set the stage for a successful
settlement. Phil Cutler, Representing Clients in Mediation: A
Mediator’s Perspective, Dispute Resolution Magazine (2003).
- Know Your Mediator’s Personality and Professional Background It is
helpful to know ahead of time the style of mediation to be used. Some mediators conduct mediation much
like a judicial settlement conference.
They will explain their assessment of the settlement value and
actively assist the parties in understanding their strengths and
weaknesses. Other mediators are
more passive and see their roles as relayers of settlement offers. They do no provide assessments of the
merits or disputed legal point of a case.
Some mediators believe that the best way to produce a settlement is
to fully understand and discuss the merits of the case providing the
litigants with the opportunity to vent.
Others are more interested in immediately proceeding to exchanging
monetary offers. Counsel needs to
carefully investigate the prior performance and style of a mediator in
order to know if that particular mediator is a good choice for the
client. Phil Cutler, Representing Clients in Mediation: A
Mediator’s Perspective, Dispute Resolution Magazine (2003).
- Mediation Comes With a Price Tag While prices vary, in most
metropolitan areas, a typical day-long mediation can cost approximately
$3,000.00 to $4,000.00. In a simple
two person dispute, each side ends up paying about one half. Be sure to get a complete estimate of
cost prior to the mediation. Phil
Cutler, Representing Clients in
Mediation: A Mediator’s Perspective, Dispute Resolution Magazine
(2003).
- Help Your Mediator Understand Your Client’s Perspective A
mediator who knows something about your client’s perspective on the
dispute can be most effective. If
possible, meet with the mediator or conference by telephone before the
mediation to share your client’s and your own perspectives. Phil Cutler, Representing Clients in Mediation: A Mediator’s Perspective, Dispute
Resolution Magazine (2003).
- Be Prepared Almost
all mediators require a memo from each side summarizing the salient facts
and addressing both liability and damages issues. The memo should be an advocacy piece and
should be more analytical than rhetorical.
The memo can be shared with the opposing side or it can be kept
confidential for the mediator’s eyes only.
Phil Cutler, Representing
Clients in Mediation: A Mediator’s Perspective, Dispute Resolution
Magazine (2003). The memo should be
“concise” and should include:
- A statement of facts;
- Theories of liability;
- Economic damages;
- Summary reports of expert or
opinion witnesses;
- Factual report of witnesses;
- Status of the case if in
suit;
- Expected trial date if in
suit;
- Last demand and offer; and
- A list of evidentiary type
exhibits.
Rita L. Gitchell and Kevin M.
Lesperance, Co-Mediation and Judicial Mediation, For the Defense.
- Select the Right Client Representative If
your client Is a business entity, such as a hospital, it is important for
the business representative to attend in person to hear the mediators
questions, comments and observations and to see how the mediator and your
opponents react to the case. Also
be sure to select a representative who has authority to evaluate and
develop settlement proposals. Phil
Cutler, Representing Clients in
Mediation: A Mediator’s Perspective, Dispute Resolution Magazine
(2003).
- Prepare Your Client
Prepare your client to answer questions from the mediator
concerning ranges of acceptable settlement results. Review your mediation memo with your client,
along with the opposing side’s memo.
Explain all legal theories presented. Explain your assessment of the case and
be candid about the risks of trying the case including litigation
costs. Phil Cutler, Representing Clients in Mediation: A
Mediator’s Perspective, Dispute Resolution Magazine (2003).
- Caucuses During an individual caucus, the
mediator meets with one party (and his or her attorney) separate from the
opposing party to inquire into the areas of agreement and disagreement and
to clarify those areas. The
attorney should be prepared to present relevant case law or documentation
to support the evidence that he or she believes would be admissible at
trial. The attorney should point
out any evidence or records that may have overlooked by the
mediators. The mediator may
question the client during the caucus to clarify information or to
determine whether the client will make a good witness at trial. The mediator may also present
information that the opposing side has chosen to reveal. Rita L. Gitchell and Kevin M.
Lesperance, Co-Mediation and
Judicial Mediation, For the Defense.
- Listen Actively As the mediator progresses, keep in
mind that your goal is not to convince the decision maker of the
correctness of your client’s cause; it is to motivate the opponent to
agree to a mutually beneficial settlement.
Be a good listener and be aware the implied signals from your
client, from the mediator, and from your opponent. If the parties are from different
cultures, business or otherwise, consider the impact their differences may
have on settlement dynamics and the flow of the mediation. Ask questions and acknowledge legitimate
points made by the opposing party.
Phil Cutler, Representing
Clients in Mediation: A Mediator’s Perspective, Dispute Resolution
Magazine (2003).
- The Opening Settlement Offer If you have discussed that
a settlement in a particular range might be possible, keep in mind that
opposing counsel is going to remember that discussion. If you make an opening offer which is significantly
more advantageous to your client than what the prior discussions with
opposing counsel indicated, this may impact the dynamics of the
mediation. Consider articulating a
rationale for departing from what your opponent would reasonably
expect. If you are the plaintiff,
your opening offer needs to be high enough to give you and your client
some flexibility to more lower and vice versa if you are the
defendant. Most importantly, your
opening statement must communicate that you and your client are sincerely
interested in settling the case.
Phil Cutler, Representing
Clients in Mediation: A Mediator’s Perspective, Dispute Resolution
Magazine (2003).
- Evaluate Offers Realistically Keep possible trial
outcomes in mind. A trial verdict
does not guarantee payment. When
the defendant’s ability to pay is in question, immediate payment of a
smaller amount may be attractive. Phil
Cutler, Representing Clients in
Mediation: A Mediator’s Perspective, Dispute Resolution Magazine
(2003).
- Be Creative Keep your client’s, and the opposing
party’s, needs in mind. Settlements
can be structured to take into account mutually advantageous future
business relationships, tax advantages and a variety of other factors that
may not be available at trial. Phil
Cutler, Representing Clients in
Mediation: A Mediator’s Perspective, Dispute Resolution Magazine
(2003). An example would be a
college fund for a child of a deceased plaintiff.
- Close With a Written Agreement Always reduce the
settlement agreement to writing. A
handwritten agreement summarizing the key points of the settlement is
fine. This agreement may indicate
that the parties contemplate the preparation of more formal
documentation. Phil Cutler, Representing Clients in Mediation: A
Mediator’s Perspective, Dispute Resolution Magazine (2003).
PENNSYLVANIA MEDIATORS
This author is not
recommending or promoting any particular individual or enterprise. The following list of mediators and their
websites is intended to assist the reader in locating a mediator in Pennsylvania.
ADR Options, Inc.
adr-options.com This company offers mediation, arbitration
and mock trials. The website will allow
you to do all of the following: access
information on their Mediators/Arbitrators; submit a case to ADR Options; read
the company’s Rules of Procedures for arbitrations; access client references;
and print a Dispute Resolution Clause.
Healthcare Resolutions www.healthcareresolutions.com
This company’s innovation program
– Medical Liability Mediation Alternatives (MLMA) – offers a highly successful
alternative for resolving medical liability cases.
Robert A. Creo is a specialist in alternative dispute resolution located in
Pittsburgh, Pennsylvania. He has served as a mediator and
arbitrator in over 2,500 cases since 1979. Mr. Creo serves on the panels of
Jams (lead neutral in the Pittsburgh office between 1995 and 1997), the CPR
Institute for Dispute Resolution (Distinguished Neutrals Panel), the National
Arbitration Forum, the American Arbitration Association, Settlement Systems,
Inc., and other ADR providers. www.rcreo.com
THE FOLLOWING MEDIATORS PROVIDE SERVICES NATIONWIDE
IN A VARIETY OF PRACTICE AREAS
http://www.mediate.com/ This
site will assist you in locating a mediator by location and area of practice,
and features information from leading providers of mediation and conflict
resolution training, resources and services.
International Academy of
Mediators (IAM) http://www.iamed.org/index1.cfm
The mission of the
International Academy of Mediators is to define standards and qualifications
for the professional mediator of commercial disputes and to promote the
mediation process as the preferred means of resolving disputes. The site provides a list of qualified
mediators across the nation.
Mediation Arbitration North America. http://www.2medi8.com/
JAMS http://www.jamsadr.com/ This company was founded in 1979, and has
been instrumental in the evolution of Alternative Dispute Resolution.
CONCLUSION
Mediation is a viable alternative to litigation. The parties are able to express their
interests and negotiate a settlement without the antagonistic atmosphere of
traditional litigation. The client is
able to define what constitutes a “win” situation rather than having a judge or
jury make that determination. The
parties can express themselves throughout the process. If the parties are unable to reach a
settlement, the court system is always open to them as the next step.
