Mediation Before Malpractice Suits?

Like any toddler, the 3-year-old was moving fast as she followed her mother into the physician's examining room. The mother had been treated for a leg burn several days earlier and was back for a routine follow-up exam. As they waited for the doctor, the toddler darted about the small room, grabbing at everything in sight. Suddenly the girl shrieked, and her mother looked down in horror. A used hypodermic needle, protruding from a container on a mobile supply cart, had punctured the skin on her hand, leaving an inch-long bloody mark. The mother screamed for help, and the office receptionist dashed into the room. "Don't you know how to control your child?" she shouted.

Happily, the girl tested negative for HIV and hepatitis C. Even so, her mother filed a complaint against the physician. The state medical licensing board decided not to take disciplinary action against the doctor. It did, however, recommend the matter to its voluntary mediation program. Both physician and parents agreed to meet with a mediator to explore a resolution.

At the mediation session, the mother recounted the trying events of that day. She talked about the impact on her, her daughter and the family. Her doctor listened intently. When she finished, the physician spoke softly. He apologized for what happened and for the pain it caused them. He then described changes instituted in the office since the young girl's puncture wound occurred. Sharp-object containers had been removed from supply carts and bolted to the wall, beyond children's reach. They were also emptied regularly to ensure they didn't overflow, and office staff received training in crisis management. Satisfied that she had accomplished her objective, the mother dropped the complaint.

Long familiar in divorce proceedings and labor disagreements, "alternative dispute resolution" is spreading to the world of health care. Our experience suggests that when patients and providers work out their differences face to face in a nonadversarial forum, they generate better solutions to problems. Patients gain more influence over the health-care system, and providers emerge with a stronger commitment to making it work.

Legal action may be appropriate in cases involving major negligence. But an award derived from the civil justice system does not require corrections on the part of the doctor or system. It is only a transfer of money--and few plaintiffs achieve even that. Because litigation is very expensive, plaintiff attorneys are reluctant to take cases unless there is potential for very high damages, and a very high likelihood of success. Some lawyers say they take as few as one in 100 cases. Researchers here at Harvard found in reviews of medical records that 97 percent of people who suffered negligent injury did not sue. So, unless you have a major injury and a high likelihood of winning an award, mediation is more likely to bring you justice. The mediator creates a safe and encouraging environment for deliberation, fostering new ideas, shuttling settlement options back and forth and focusing attention on feasible solutions. The process is not only cheaper than litigation but more geared to fixing what is broken.

The current financial squeeze on the health system has fostered adversarial posturing among those who receive and deliver health services. The proposed Patients' Bill of Rights is a good example, with its insistence on a right to sue one's managed-care organization. But as current litigation success rates make clear, the right to sue will address only a small number of problems. Mediation is more responsive to the human dimensions of problems in the system, and therefore more likely to succeed.

Our study of mediations found that patients have three main desires. First, they want a full explanation of what occurred and why. Second, they want an acknowledgment or apology from the caregiver. And third, they want to know what steps were taken to ensure that what happened to them would not happen to someone else.

The message is spreading. Health-maintenance organizations are experimenting with mediation to resolve benefits disputes. One New England HMO recently discovered through mediation how it could improve appropriateness of services for its members. Medical-liability insurers in several states are exploring options to get their doctors talking with dissatisfied patients early on in order to achieve mutually acceptable solutions. Merging hospitals, feuding doctors and antagonistic policymakers are increasingly turning toward mediation as a way to resolve their differences. And more and more health professionals are learning methods of conflict resolution so that these tools can become a part of their work.

Mediation can't resolve every issue. It will not eliminate litigation: there is a place for the court system. Mediation can, however, encourage the type of constructive talking and listening that we need if we are going to help our health system heal itself.

Mediation Before Malpractice Suits? | News