Mediation Could Help Remedy Medical Malpractice Mess

Newly empowered Republicans are pushing for legislation that would cap medical malpractice damages, among other things.

Tort reform is perennially popular with the GOP. But there may be another remedy available for the malpractice mess: mediation. Yet only a handful of states where it's required by law, however, use mediators to resolve medical malpractice cases outside the courtroom.

Why? For one thing, plaintiffs may not even know mediation is an option. And lawyers, the main referrers for mediation, and aren't necessarily big fans of it.

"Lawyers tend to be very combative and assertive, and mediation is neither combative nor assertive," says Nancy Kramer, a mediator in New York.

Here's how it works: patients, health care providers and their lawyers sit down with a neutral mediator to discuss the problem—a wrongful death or medical negligence claim, for example—and try to reach an agreement about compensation. The meeting often lasts the better part of a day, and whatever is said is confidential and not admissible in court. Even if parties agree to mediate, they can abandon the process and take the case to trial if they're not making headway.

In addition to temperament, money may play a role in a lawyer's desire to mediate. Plaintiff's lawyers typically work on a contingency basis in medical malpractice cases, earning about 30 percent of the settlement amount. Although there are no hard data, mediation settlements tend to be smaller than jury awards, say experts.

Mediation has its compensations for both plaintiffs and their lawyers, however. There's no jury to convince, so the money's a sure thing, and they may get it years sooner than they would if the case went to trial.

Even on the defense side, mediation may mean less money for lawyers. Unlike plaintiff's lawyers, defense attorneys in medical malpractice cases typically bill clients by the hour. In one recent study, medical malpractice lawyers estimated they spent six hours preparing for mediation versus 100 preparing for trial. That's a lot of billable hours. In a wrongful death suit, "Mediation could save $100,000 in litigation costs," says Carol Liebman, a clinical professor of law at Columbia University.

So savvy patients who want to save time, money and angst in a medical malpractice lawsuit may want to suggest mediation to their lawyer if he doesn't bring it up to them. "The downside is so small," says Kramer. "If there's nothing to talk about or there's no movement, you'll know that in a few hours."

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