Experts have championed mediation

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1 Health Tracking From The Field Mediating Medical Malpractice Lawsuits Against Hospitals: New York City s Pilot Project All participants saw the value of mediation in reaching acceptable outcomes for patients and health care providers. by Chris Stern Hyman and Clyde B. Schechter ABSTRACT: The New York City Health and Hospitals Corporation participated in a feasibility study to measure the participants satisfaction with mediation of medical malpractice lawsuits. Twenty-nine cases were referred to the study, twenty-four agreed to mediation, and nineteen were mediated. Satisfaction data indicate that the plaintiffs and their attorneys and the defendant s attorney were satisfied with the process whether or not settlement was reached. The mean length of a mediation was 2.34 hours. Of the cases mediated, thirteen settled, with a median payment of $111,000. The defendant s and plaintiffs attorneys estimated spending approximately one-tenth the amount of time preparing their case for mediation that they would have spent preparing for trial. [Health Affairs 25, no. 5 (2006): ; /hlthaff ] Experts have championed mediation as being well suited to resolving medical malpractice lawsuits. 1 However, there are pockets of resistance. 2 Courts have alternative dispute resolution programs that refer medical malpractice cases and other civil cases to mediation. 3 This observational feasibility study of voluntary, not court-ordered, mediation to resolve medical malpractice lawsuits begins the data-gathering effort about a process for which scant data exist. We studied nineteen cases in New York City that went to mediation, in a pilot project known as the New York City Project for Mediating Malpractice Cases. The three city agencies that are needed to settle a medical malpractice lawsuit the New York City Health and Hospitals Corporation (HHC), the New York City Law Department, and the New York City Office of the Comptroller agreed to refer cases to this study. The principal investigator requested at least thirty cases; twenty-nine were referred. The three agencies and the principal investigator agreed upon selection criteria. First, Caronia Corporation, which reviews medical records and provides a written report for each medical malpractice claim filed as part of its comprehensive claims services for HHC, had completed its medical review. Second, the case was not a candidate for the city s existing medical malpractice early settlement program, which uses telephone contact to discuss settlement with plaintiffs attorneys and invites all plaintiffs at the pleading stage to participate. 4 If a plaintiff s attorney did not respond Chris Stern Hyman (cshyman@nymedicalmediation.com) is the principal investigator for the New York City Project for Mediating Malpractice Cases and an associate research scholar at the Columbia Law School in New York City. Clyde Schechter is an associate professor in the Department of Family and Social Medicine, Albert Einstein College of Medicine of Yeshiva University, also in New York City September/October 2006 DOI /hlthaff Project HOPE The People-to-People Health Foundation, Inc.

2 From the Field or the case did not settle in the program, the case remained a candidate for the study. Third, the estimated exposure for the city was less than $400,000. Halfway through the study, the city decided to include some cases with exposure at or above $400,000. Fourth, the case did not include an HHC physician or HHC affiliate physician as a named defendant. The city decided that it would be more efficient not to consider named-physician cases. 5 Fifth, any nonmonetary remedy agreed to by the parties wouldbeabletobeaccomplishedwithinone year. Study Methods The principal investigator telephoned each plaintiff s attorney for the cases referred and asked about participation in the study. Twenty-four of twenty-nine accepted. Ultimately, nineteen of the twenty-four cases were mediated. 6 Mediation was provided by comediators. The principal investigator served as a mediator in all but one of the mediations. Three other experienced mediators were assigned on a rotating basis to serve as the other mediator. Prior to each mediation, the mediators held a conference call with the attorneys to schedule and prepare for the mediation. Participants included the plaintiff, the plaintiff s attorney, at times a family member or friend of the plaintiff, one representative each from HHC and the comptroller s office, the defendant s attorney, and a translator, if needed. Structured interviews were the primary source of data, which allowed us both to assess the subjective components of the process and to quantify the measurable outcomes. After each mediation, one trained law-student research assistant attempted to contact each participant and the mediators by telephone. Most of the questions were posed with fivepoint Likert or Likert-like scales, although some were open-ended. All scales were scored from 1 (most favorable) to 5 (least favorable). Several questions with a similar focus were grouped into three scales measuring satisfaction with the process of mediation, satisfaction with the outcome, and inclination to use mediation in the future or recommend it to others. For the information provided by the mediators concerning the content of the case and the outcome of mediation, we relied exclusively on the principal investigator s responses. If either mediator indicated that an apology was given, we inferred that such was the case and that no apology had been given if both mediators so agreed. For all other mediator-provided information, we averaged the two mediators responses. Descriptive summaries of responses were provided by tabulation for categorical responses, means and standard deviations for scale scores, and medians for ordinal-response items not included in scales. Study Results Case outcomes. Of the twenty-four cases with plaintiffs who agreed to mediation, two cases were settled before mediation was scheduled, three cases were not able to be scheduled within the study s time period, and nineteen cases were mediated. 7 All mediations occurred between 5 May and 15 October 2004, with an average interval between mediations of 7.3 days. The total time spent in mediation ranged from 1 hour to 4.5 hours per case, with a mean of 2.34 hours (standard deviation: 0.96). Among the twenty-nine cases, the two most prevalent categories alleged surgical error (nine) and failure to diagnose a condition (six). Eight were wrongful death cases. Of the nineteen cases mediated, thirteen settled.inelevenofthenineteencases,anapology of sympathy or responsibility was offered, and ten of these cases settled. Among the other eight, three settled. Thus, settlement occurred 2.42 times more frequently when an apology was offered (p =.04). This study, however, does not establish causality between apology and settlement. It may be that those cases would have settled whether or not an apology was offered. The monetary settlements ranged from $17,500 to $400,000, with a median settlement of $111,000 (twenty-fifth percentile, $75,000; seventy-fifth percentile, $300,000). Plaintiff data. Plaintiffs were a diverse group as to race and language and evenly divided between males and females. Twelve HEALTH AFFAIRS ~ Volume 25, Number

3 Health Tracking plaintiffs were interviewed: Six were female and six were male. For race identification, two were Hispanic; five self-identified as black, one as white, and three as American Indian or Alaska Native. (One plaintiff did not respond to this question.) English was the primary language of eight plaintiffs; Spanish for two; and Hebrew and Russian for one each. One of the goals of the study was to measure the satisfaction of all participants. The range of possible responses to satisfaction items was from 1 (very satisfied) to 5 (very dissatisfied). For the twelve plaintiffs interviewed, mean satisfaction with the process was 2.22 (SD: 1.03), satisfaction with the outcome was 2.54 (SD: 0.81), and inclination to use mediation again was 1.85 (SD: 1.27). When asked whether they felt they had been treated with respect, nine plaintiffs strongly agreed, and two agreed. (The remaining plaintiff did not respond to this question.) Three plaintiffs, however, agreed or strongly agreed that they felt pushed into accepting the settlement; five disagreed or disagreed strongly, one neither agreed nor disagreed, and three did not respond to this question. Attorney data. Thesameattorneyrepresented the defendant, HHC, in all nineteen cases and was interviewed after each case. Prior to this study, she had no experience with mediation. We interviewed the plaintiff s attorney in eighteen of the cases. All eighteen plaintiffs attorneys were male. Nine had previously used mediation in a malpractice case, and seven of them had liked the experience. The questions in the satisfaction scales for attorneys were the same as for the plaintiffs, except that those that assessed a plaintiff s personal experience were omitted. For attorneys, satisfaction with the process averaged 1.95 (SD: 0.78); satisfaction with the outcome, 2.56 (SD: 0.55); and inclination to use mediation again, 1.82 (SD: 1.09). The satisfaction responses were broadly similar in all attorney subgroups(thatis,bysex,party,priormediation experience, or settlement reached). The defendant s attorney was equally inclined to use mediation again whether the case reached settlement or not. By contrast, among plaintiffs attorneys, failure to reach a settlement was associated with a reduced inclination to mediate again. The contrast between the two groups was statistically significant (p =.008). Timespentpreparingformediationwas evaluated. The attorneys estimated they had spent, on average, 3.49 hours (SD: 3.06) preparing for mediation, compared with an estimated hours (SD: 29.17) of preparation had they gone to trial with the same case. This difference between time spent preparing for mediation and estimated time spent preparing for trial among all attorneys was highly statistically significant (p <.00005). Other participant data. One or more other participants were present at seventeen mediations. In five cases, a friend or relative of the plaintiffs attended, and in one, a paralegal of the plaintiff s attorney was present. One representative of the Comptroller s Office attended ten sessions, one representative of HHC attended fifteen sessions, and two other HHC representatives attended one session each. The comptroller s representative and all but one of the HHC representatives had previously participated in mediations; the rest of the other parties had not. For the city s representatives and other participants, satisfaction with the process averaged 2.14 (SD: 0.62); satisfaction with the outcome,2.65(sd:0.48);andthepropensityto use mediation again, 2.40 (SD: 1.17), which reflects moderately high levels of satisfaction. Mediator data. Co-mediation was chosen to provide the consistency of the principal investigator serving as a co-mediator, the variation of three different pairs of mediators, and the benefits of co-mediation. 8 One mediator was male; three, including the principal investigator, were female. Each was knowledgeable about the medical field. In the structured interviews, the mediators often self-identified as facilitative in style and were usually identified by the other participants as facilitative or mostly facilitative. Mediation: Process And Style Process. Mediation is a confidential, voluntary process in which an impartial third 1396 September/October 2006

4 From the Field party the mediator helps the participants negotiate their differences and either craft a mutually acceptable resolution for their dispute or decide to deal with their problems in some other manner, including litigation. Mediation is based on three core values: autonomy, informed decision making, and confidentiality. Participants may end the mediation at any time without adverse consequences. If, however, a resolution is reached, it is memorialized in writing, signed by the participants, and becomes a binding contract. 9 Style. Comparisons are often made between evaluative and facilitative styles in mediation. The former typically is directive and focuses on the strengths and weaknesses of the parties positions, proposes a value range for the case, predicts an outcome in court, spends little time in joint session, and spends more time meeting privately with the parties in caucus. The latter helps the parties negotiate without evaluating, encourages clients participation in the mediation, and takes time to discuss feelings and facts that enrich the focus beyond the amount of money that will settle the case. In practice, facilitative mediators often incorporate evaluative approaches by asking both parties questions to test the strength of their positions or to suggest a weakness and, when asked by the parties, by providing a mediator s proposal to break an impasse. Role Of Apology Research shows that an apology is one of the responses a patient and family want after an adverse event or medical error. 10 An apology of sympathy occurs when the speaker says, I m sorry this happened to you ; an apology of responsibility takes responsibility for having caused the event. 11 In our study the mediators encouraged the defendant s attorney, if she felt it appropriate, to offer an apology to plaintiffs during the first joint session. She quickly developedanabilitytoofferanapologyofsympathy or responsibility. There was no physician or hospital/facility representative at the mediation, so the lawyer for the city offered the apology. The following summaries are written from the plaintiffs perspectives. Apology of responsibility. Case no. 24: Mr. H suffered from asthma and went to the emergency room (ER). He was there for fourteen hours and went into cardiopulmonary arrest. Resuscitation attempts were unsuccessful, and he died. In the mediation, the plaintiff s attorney described Mr. H s negligent care and the basis for the high-six-figure demand. When the defendant s attorney responded, she started with an apology of responsibility, acknowledging that the care Mr. H had received was not the care he should have been given. Apology of sympathy. Case no. 14: Mr. J was a beloved father and grandfather. He had immigrated to this country and despite being in his nineties was a vital and independent family member. While in a rehabilitation facility, he improvised a restraint using his belt but nonetheless fell from a chair. He broke his hip, injured his shoulder, and was on the floor for a few hours. When he returned home after several months of rehabilitation, he was isolated and had lost his independence. The attorney for the city offered an apology of sympathy and responded to the family s anguish. She also explained why it was not possible for the staff to have watched Mr. J continuously and why restraints are used sparingly. Nonmonetary remedy. The opportunity to consider remedies in addition to money is a distinguishing feature of mediation. Often the nonmonetary remedies are more emotionally significant to the parties. Case no. 4: Mr.L,amaninhisearlythirties with sickle-cell anemia, went to the ER twice inthreedays.thesecondvisitoccurredthe day before a national holiday. From the family s perspective, there were no attending physicians present in the ER, and the staff could not answer their questions. Mr. L was admitted to the hospital and died several days later. The case settled, but the family remained convinced that the shortage of staff on the day of admission contributed to his death. The negotiations started with a demand in excess of seven figures. Ultimately it was agreed that in addition to a six-figure monetary amount, the family and its attorney would HEALTH AFFAIRS ~ Volume 25, Number

5 Health Tracking write to the hospital s chief executive officer describing their concerns about the lack of communication between the family and hospital staff and the staffing shortages on that holiday weekend. The letter was sent with a cover letter from the city s attorney. Roles Of Parties And Attorneys Plaintiff participation. Some plaintiffs attorneys were concerned that having the client participate in the mediation would mean loss of control over the negotiation. In sixteen cases, the plaintiff participated. But in Cases 8, 9, and 17, they did not, and none of these cases settled (p =.04). In one case, the plaintiff s attorney brought his client but refused to allow her into the mediation room. He later recognized that he might have made a strategic error and requested later to reconvene the mediation. Although the mediator had several conversations with the lawyers for both parties, the mediation did not resume. Differing interests of attorneys and clients. The interests of the attorney and the client are not identical, and there are moments whenthedivergenceisproblematic. Case no. 11: Ms. G was eighteen years old when she went to the hospital for a breast reduction procedure because of back pain. After the surgery, she still wore the same bra size and had scarring. She wanted a second breast reduction procedure and reconstructive surgery for the scars. In the first caucus with the mediators, the plaintiff was upset and clear about her wish to settle the case, have corrective surgery, and not go to trial. Her lawyer was adamant that mediation was undermining his relationship with his client and forcing him to accept too low a settlement. The tension between the goals of the attorney to obtain more money and the plaintiff to accept the final offer resolved in favor of the plaintiff. The mediators felt ambivalent about their role in pleasing the plaintiff and frustrating her attorney. Helping attorneys with clients. Several plaintiffs attorneys asked the mediators to assist them in helping their clients accept a more realistic assessment of their case. In one case, the clients were unrealistic about the amount of money they could obtain. For example, a granddaughter hoped that the family would receive enough money to buy a house large enough for their multigenerational family. The family s attorney and the mediators explained the limited damages in this case. In another case, recently obtained documentation showed that a previous car accident had caused one of the injuries alleged. The plaintiff s attorney requested that the mediators help his client understand and accept the diminution in the case s value. The mediators answered the plaintiff s questions and explained how facts are proven at trial. The plaintiff was displeased but grudgingly accepted the explanation. City representatives. The representatives from the Comptroller s Office and HHC contributed greatly by often providing the rationale for the city s position. They were impressed by the effect of the plaintiff s presence on the negotiations and doubted that cases would have settled without the plaintiff. Settlement without discovery. Both plaintiffs and the defendant s attorneys had to grapple with an unfamiliar experience of negotiating a possible settlement without completed discovery (the pretrial process of obtaining evidence). Of the nineteen cases mediated, six cases had no discovery by the city, and only two had completed discovery. 12 Case no. 13: Mr. P worked for the transit authority and cut his hand on a shattered light bulb. The radiologist in the ER did not notice that glass remained in the wound. As a result, a second surgery was needed to remove the glass. Here there was no discovery conducted by the city, and the mediation was held eight months after the action was commenced. The city had enough information from the medical record to negotiate, and both sides understood the benefits of ending the litigation. Concluding Comments The results of this feasibility study suggest that the plaintiffs, the defendant, their attorneys, and other participants view mediation as fair, satisfying, and responsive to their interests. The process can resolve disputes between 1398 September/October 2006

6 From the Field participants, including clients and their attorneys. Our findings also suggest that transaction costs are decreased. Reducing the amount of discovery produces emotional and financial savings for both sides, and because the amount of information needed for mediation is not the same as that needed for trial, limiting discovery in certain cases is appropriate. Both the defendant s and plaintiffs attorneys estimated that they spent approximately one-tenth the amount of time preparing a case for mediation that they would have spent preparing for trial. The study also shows that mediation can be conducive to apology and that the source of the apology need not be a health care provider, although a physician could have enhanced the apology. The finding showing a strong association between apology and settlement needs further exploration if the causative variables are to be fully understood. The limitations of this feasibility study include the small sample size, the use of only governmental cases, and the exclusion of cases with named physician defendants. Future research should correct for these limitations. The shadow that litigation casts on the practice of medicine might decrease with increased use of mediation. The authors thank the members of the study s Advisory Panel, all of whom contributed invaluable advice: Carol B. Liebman (chair), Nancy N. Dubler, Michael N. Mulvihill, and William M. Sage. They also thank their research assistant, Jinny Suh Turrentine, who diligently gathered the data and gave logistical support; Marc Fleisher, Vivien B. Shelanski, and Barbara Swartz, expert co-mediators; the clients, lawyers, and representatives of the City of New York who participated in this study; and Edward A. Dauer for his extensive comments. This study was funded by a grant from Morton P. Hyman to Columbia Law School. NOTES 1. E.A. Dauer and L.J. Marcus, Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement, Law and Contemporary Problems 60, no. 1 (1997): ; and B.A. Liang, A System of Medical Error Disclosure, Quality and Safety in Health Care 11, no.1(2002): E.A. Dauer, L.J. Marcus, and S.M. Payne, Prometheus and the Litigators: A Mediation Odyssey, Journal of Legal Medicine 21, no. 2 (2000): ; and R. Wissler, Barriers to Attorneys Discussion and Use of ADR, Ohio State Journal on Dispute Resolution 19, no. 2 (2004): T.B. Metzloff, R.A. Peeples, and C.T. Harris, Empirical Perspectives on Mediation and Malpractice, Law and Contemporary Problems 60, no. 1 (1997): Rhonda Rosen, deputy chief, Medical Malpractice Unit, Tort Division, New York City Law Department, conversation with Chris Stern Hyman, 12 July Janice Kabel, deputy counsel, Office of Legal Affairs, HHC, communication with Hyman, 5 April A table presenting key elements and outcomes of the cases is available online at DC1. 7. Ibid. 8. L.P. Love and J.B. Stulberg, Practice Guidelines for Co-Mediation: Making Certain that Two Heads Are Better than One, Mediation Quarterly 13, no. 3 (1996): C.B. Liebman and C.S. Hyman, Medical Error Disclosure, Mediation Skills, and Malpractice Litigation: A Demonstration Project in Pennsylvania, March 2005, LiebmanReport.pdf (accessed 21 September 2005). 10. T.H. Gallagher et al., Patients and Physicians Attitudes regarding the Disclosure of Medical Errors, Journal of the American Medical Association 289, no. 8 (2003): ; J.R. Cohen, Apology and Organizations: Exploring an Example from Medical Practice, Fordham Urban LawJournal 27, no. 5 (2000): ; and J.K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, Michigan Law Review 102, no. 3 (2004): C.B. Liebman and C.S. Hyman, A Mediation Skills Model to Manage Disclosure of Errors and Adverse Events to Patients, Health Affairs 23, no. 4 (2004): Amy London, senior counsel, Medical Malpractice Unit, Tort Division, New York City Law Department, telephone conversations with Hyman, 12 August 2004 and 2 March HEALTH AFFAIRS ~ Volume 25, Number