Healthcare Disputes Present Special Problems in Mediation by Kathy A. Cochran


Healthcare Disputes Present Special Problems in Mediation

by Kathy A. Cochran, Panelist

Mediating disputes arising from healthcare presents special problems.  These are generally medical malpractice actions, but occasionally also involve combined product liability/medical malpractice disputes.  There are also sporadic claims based upon HIPPA disputes for the inappropriate disclosure of private health information.

First, the stakes are often much higher in these disputes.  Lawyers usually don’t even take on medical malpractice clients if there is not a substantial claim for damages.  This is because the cost of pursuing medical malpractice claims is much higher than the normal lawsuit.  The need to retain experts is unavoidable, as the law in most states requires testimony from a member of the same specialty to support a prima facie claim.  Further, such cases often involve the need to depose multiple treating physicians and sometimes nurses and ancillary healthcare practitioners, triggering the need to pay higher witness fees.  Finally, lawyers presenting such claims are normally specialists in the field and therefore knowledgeable about the risks of losing a case against a respected physician or hospital.  There are few such cases that are slam dunks.

Second, both sides of the dispute have emotional investment in the outcome of the case.  Physicians must report settlements to the national practitioner database, and simply don’t like to have their name in that database.  Physicians who have settled claims can also expect higher malpractice insurance premiums.  They can also expect more obstacles to obtaining or renewing privileges to practice at the local hospitals.  Unlike other cases where insurers make business decisions whether to settle the case, medical malpractice cases frequently require consent from the physician or hospital that has been sued before settlement can occur.  Given that settlement will have both economic and non-economic ramifications, settlement is often more difficult.

Third, the potential involvement of a product manufacturer or multiple independent healthcare providers introduces an opportunity for finger-pointing. Multiple defendants are not uncommon in this setting. The needs of multiple adverse parties are always a complication when trying to achieve resolution.

Fourth, familiarity with the medicine and scientific issues is often needed in order to understand the dispute enough to speak the language of the parties and their lawyers.

Finally, the emotional stakes for the injured patient are often more complicated.  An injury allegedly caused by a physician’s decisions and skills is often perceived by the patient as more egregious.  The patient may feel a moral obligation to publicize or punish the healthcare provider.  This arises from a sense of betrayal and fear that the alleged incompetence could pose a continuing danger to other patients.  The desire to seek publicity complicates the decision of the defendant physician even more, making confidentiality of the settlement more important as a necessary element of any settlement.

The mediator needs to be aware of these complexities in order to assist the parties to reach a settlement. The parties are normally in separate rooms, but both physician and patient may actually have a need to communicate beyond the lawyers speaking for them.  A mediator must be sensitive to these issues and employ strategies to manage the parties’ non-economic concerns.

Kathy Cochran has been an active trial lawyer since 1975, generally focusing on pharmaceutical, medical product, and medical malpractice litigation. She has participated as an advocate in numerous mediations, negotiating creative solutions and overcoming significant obstacles to dispute resolution. She has identified the important factors that influence a party’s willingness to settle and has developed techniques for overcoming negative factors that sometimes prevent resolution of complex claims. Kathy is also an accomplished arbitrator.

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