What is Medical Malpractice Mediation?October 16, 2020
Medical malpractice mediation is an alternative approach for victims of malpractice to resolve their conflicts with doctors or hospitals. The process is non-binding, but it still offers victims a road toward a favorable resolution they might not receive by going through the courts. Mediation provides impacted parties with a lower-cost alternative to the courts and allows both parties to resolve their dispute through the help of a third-party mediator. The process gives both sides more control over the outcome.
What is Medical Malpractice?
A person is the victim of medical malpractice when they receive an injury or a misdiagnosis from a hospital or health care facility. Medical malpractice involves a situation in which the care a patient receives differs from the traditional standard of care. The standard is a legal definition of what most reasonable people would consider to be the traditional level of care a patient receives. Examples of medical malpractice include a failure to adequately diagnose or test a patient based on symptoms and not providing the correct treatment for an illness or injury.
Why Should I Consider Medical Malpractice Mediation?
The process of filing a malpractice lawsuit and seeing it through to its natural conclusion through the court system is a long, arduous, and expensive endeavor. Many attorneys will not even consider accepting such a case unless the alleged victim can provide evidence of malpractice. Even if a lawyer does agree to take on the case, there is a minimal chance of success, as only about 10 to 20 percent of all cases see a resolution in the victim’s favor.
In contrast, a victim stands a better chance of obtaining a settlement by working with the opposing side through mediation. Overall, the process is less expensive and quicker, as a mediation session may only take a few days as opposed to a trial that may last months or a year. In the end, the victim can receive some compensation for the error and they might even be able to mandate some change in behavior on the doctor or hospital’s part to ensure that such a situation does not occur again.
Even though the process is open to most parties, many fail to take advantage of it. The result is taking their chances in court, where in general, the doctors and hospitals enjoy a greater chance of success. Given that imbalance, doctors and hospitals might appear not to have the motivation to go into mediation. That might be true on some level, but many health care professionals and facilities also do not want to endure a long, drawn-out trial. They could face scrutiny in the public and with other patients and have a motivation to resolve the issue as quickly and quietly as possible.
Some doctors may not be able to go into mediation. There could be a clause in their contracts with insurance companies that prevent them from settling a case unless the insurance companies agree. Another reservation for doctors to settle could be the conditions for which they must agree because of a settlement. Many will not want to admit to any wrongdoing or a mistake. If they do settle, they must register that settlement with the National Practitioner Data Bank.
How Should I Prepare for a Mediation?
Once both sides agree to a mediation, the first step is to find a mediator. The mediator is usually one who has experience in the area either as an attorney or a judge. There are several organizations that maintain a database of approved mediators, although doctors may consent to the process only if they use a mediator of which they approve.
After the two parties settle on a mediator, the next stage is to prepare for the actual mediation session. The best way to do that is to gather evidence, facts, and documents related to the case. It is in the best interest of both sides that they provide as much information to the mediator as possible so they can be informed about the direction the mediator steers the negotiations. Victims should provide a detailed timeline of when events took place along with any medical briefs. A major document they should also include is a life care plan, which is a comprehensive report detailing the future needs a patient will have because of a major injury. The report provides data and evidence as background to verify the claims.
Both sides should present any details about any medical liens that might exist because of the medical condition. A victim might require assistance in paying their medical bills, and those individuals or entities that are owed payment are entitled to any proceeds the victim receives as a result of the mediation. They can place a medical lien on the victim, who should disclose those liens to the mediator and the opposition. As part of the data gathering, the victim and their lawyers should hire experts as well as any other witnesses that might provide context or background of the injuries the victim sustained. The doctor or hospital will do the same to respond to many of the claims the victim’s side is making.
What Happens During a Mediation Session?
When scheduling a mediation session, the two sides should consider the amount of information involved in the case and schedule adequate time to handle it. On the day of the mediation, both sides convene, with the plaintiff and their attorneys in one room and the opposition and their legal representation in another. The mediator will address the two sides separately and explain the nature of the mediation as well as the mediator’s role and the timeline of events going forward.
The mediator opens the session by first speaking with the plaintiff’s side and asking the attorneys about the facts of the case and the main argument of their client. It is at that point the mediator will ask to highlight the aspects of the case that are in dispute. The attorneys may also hand over any briefs or other evidence they submitted prior to the session.
Over the course of the next few hours, the mediator will take part in so-called shuttle diplomacy, which is when the mediator will meet privately with both sides in their separate rooms. During those discussions, the mediator will look for areas of common ground and places where the two sides can build on toward a settlement. The mediator will also challenge statements that both sides made to clear barriers toward an understanding.
At some point during the negotiations, the mediator may decide that a joint meeting between the two sides will be useful toward reaching a settlement. The shuttle diplomacy will continue until the two sides reach a settlement or the mediator concludes that the two are too far apart and will not reach a deal.
Even if both sides fail to reach an agreement on the day of the mediation, this does not mean the two are forever deadlocked. Oftentimes, the mediator will continue to work with both sides after the formal mediation ended to work toward an agreement. In most mediation cases, the two sides do reach an agreement.
Why Should I Choose the Mediation Route?
Even though mediation is a non-binding option, meaning neither side need abide by the final decision, this is unlikely given the fact that both sides agree to the result. Mediation is a concise alternative to a court proceeding. It brings all related parties to the negotiating table and provides an objective third party to work with both sides to resolve any lingering conflicts between the two. The privacy of the session allows the parties to negotiate without the impact of any outside influence so they can easily and quickly resolve their difference and put the case behind them.
Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Advocate for Victims of Medical Malpractice
If you have been the victim of medical malpractice and are considering having your case resolved through mediation, reach out to the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton. We have a long track record of holding members of the medical community accountable for their mistakes and will fight for you and your family. Call us for a free consultation at 800-547-4LAW (4529) or contact us online.
Our offices are conveniently located in Baltimore, Columbia, Glen Burnie, and Prince George’s County, where we represent victims throughout Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.