Chicago hospital launches co-mediation program
Chicago hospital launches co-mediation program
System uses two mediators instead of one
To encourage the use of alternative dispute resolution programs for medical malpractice claims, your facility may want to try a new twist on an old model: co-mediation.
Rush Presbyterian-St. Luke's Hospital in Chicago has found that using two mediators -- one from the plaintiff's side and one from the defense's -- is an attractive incentive to get plaintiffs to mediate medical malpractice cases early in the process. The hospital has settled four out of five cases that it has mediated in this nascent program, and all for sums the hospital deemed fair.
Creating a similar program at your hospital could help lower the costs of defense and result in lower insurance reserves or premiums.
"We are finding that people are more receptive to co-mediation," says Max Douglas Brown, JD, vice president and general counsel for Rush Presbyterian-St. Luke's Hospital. "Also, the more choices we provide, the better."
Rush Presbyterian-St. Luke's has a reputation for vigorously defending defensible malpractice claims against the hospital.
"We probably take more cases to trial than any other hospital [in the area]," Brown says.
The hospital won defense verdicts in approximately 85% of the 35 cases it took to trial in the last five years. "That's impressive, but it is the 15% that we lose -- those cases can kill you," Brown says.
Due to the unpredictability of juries in a large metropolitan area like Chicago and the high cost of defending medical malpractice claims, Rush Presbyterian-St. Luke's launched its mediation program. The goal was to try to resolve before trial certain claims the hospital deemed defensible, but with aspects making the outcome somewhat unpredictable, such as those that would appeal to a jury's sympathy.
For example, Rush Presbyterian-St. Luke's recently settled a claim through its mediation program for a case in which a young child with Down syndrome died as a result of receiving a drug overdose at the hospital. The child also had severe cardiac anomalies and had a short life expectancy, thereby reducing the parents' damage claim. Still, the hospital did not want the case to go to trial because of the expected sympathy factor for the deceased child's family, Brown says.
The key to making the mediation program work was offering plaintiffs a choice, Lerner says. Mediation is an option only after a suit has been filed. After the hospital identifies a case appropriate for mediation, the plaintiff is invited by Rush-Presbyterian-St. Luke's to mediate the case. At the time the mediation offer is made, the litigant also is offered the opportunity to select who will serve as the mediator.
Some of the mediators also use different models of mediation in the discussions. Some follow the class "neutral" model and simply facilitate settlement discussions between the parties, while others take a more evaluative approach and suggest settlements for the parties.
Addressing neutrality concerns
While mediation is nothing new, what distinguishes the Rush Presbyterian-St. Luke's program from other hospitals' is the focus on co-mediation. In co-mediation, two neutral parties listen to the parties of the case and help guide the settlement discussions. In most mediated settlements, only one neutral party is present to guide the discussions. Co-mediation is used in other states, including Florida and Indiana, but not for medical malpractice claims. Experts say there is no apparent reason for it not to be widespread.
The idea to co-mediate medical malpractice claims at Rush Presbyterian-St. Luke's came from the hospital's mediation consultant, Jerome Lerner, JD, a former Cook County (IL) judge with considerable expertise in alternative dispute resolution. When he began researching which retired judges to include on the hospital's roster of mediators, Lerner found an untapped source of expertise in medical malpractice trial lawyers.
"I was of the view that the highly experienced and well-regarded medical malpractice lawyers would make excellent mediators because of that experience and knowledge," Lerner says. "They could appreciate the consequences of all that goes into a trial."
Concerns about the neutrality of a trial lawyer with an allegiance to either the plaintiff's or the defense's side led Lerner to the notion of co-mediation. "It occurred to me that if I could combine a plaintiff's and a defense lawyer as co-mediators, it would remove the concern about bias."
In addition to providing an incentive to settle the case early, Rush Presbyterian-St. Luke's found that co-mediation gives the hospital a better perspective on whether to settle the claims. Both the plaintiff and the hospital have the opportunity to hear expert evaluations of each side's case and the co-mediator's settlement suggestions. Gaining the other side's perspective through co-mediation helps each come to terms with the merits of the other's case and settle more quickly, Brown says.
"It's very effective for both sides," Brown says. "It is an extra added dimension."
Process likened to shuttle diplomacy
Co-mediation works much like mediation, with the exception of two mediators listening to the parties to the case instead of one. In co-mediation, each side has an opportunity to make a statement about the events that led up to the lawsuit. The plaintiff also typically speaks about his or her injuries and damages. Legal rules about evidence and procedure are not applied.
After the initial statements are made, the two mediators meet separately with each party to discuss the lawsuit, in a process that Brown likens to shuttle diplomacy. After the separate meetings are held, all of the parties meet together for a final time to discuss a settlement. Depending on the co-mediators' style, they may or may not suggest settlement figures.
The successful mediation can be as short as a few hours or last three or four days. Either way, the savings are significant because evidence and witnesses are not used in mediation.
Mediation also allows the parties to take certain emotional liberties that could not otherwise be taken at trial.
"A trial can be very unsatisfying," Brown says. "It doesn't necessarily bring closure to the pain, suffering, and anguish. Mediations have been very cathartic and helpful in terms of bringing that closure. We view that from the hospital's standpoint as being very positive."
The hospital's perspective is that the closure gained in the process has been instrumental in diffusing tensions that can lead to large settlements.
For example, in the case with the deceased Down syndrome child, the hospital's lawyer apologized to the parents on Rush Presbyterian-St. Luke's behalf at the beginning of the mediation.
"That's not something you could do at a trial," Brown says. "Much of the emotionally charged atmosphere dissolved, and the parents' demand dropped from $2 million." The case was settled through mediation for approximately $300,000.
"Mediation is not an adversarial process. In that case, the jury could have become very upset with what occurred," Brown says. "The parents were very sympathetic. They loved their child. A horrible accident took place. The jury could have gotten very upset and overlooked the defensible elements of the case."
Although Rush Presbyterian-St. Luke's is self-insured, the mediation program is easily adaptable to any health care facility regardless of insurance status, Brown says. Due to the control and predictability that mediation instills into the litigation process, Brown says the hospital's mediation program is likely to lower Rush's excess insurance premiums. If the program continues to work as well as it has in its first year, the hospital may consider lowering its insurance reserves.
While Rush Presbyterian-St. Luke's considers its program to be a success, Brown says hospitals should be aware of certain barriers and misconceptions.
The Illinois Medical State Insurance Exchange, based in Chicago, which insures many of the hospital's doctors, has not participated in Rush Presbyterian's program yet, Brown says. The failure of this insurer to be involved has been a barrier to plaintiffs' willingness to mediate because the case will not be fully resolved, Brown says. The insurer's nonparticipation in the process has made some plaintiffs with claims against both the hospital and a doctor insured by the Exchange hesitant to participate in the mediation program, because the claim against the doctor cannot be resolved without the Exchange's participation.
But the physicians' insurer has shown an interest in the program, and Brown expects it to begin participating in the hospital's mediation program in the near future.
Don't set your defense counsel free
Establishing a mediation program does not mean that the hospital can expect its legal bills to disappear. In Rush Presbyterian-St. Luke's program, both sides are represented by counsel at the mediation. If the case does not settle, the hospital uses the same counsel to defend the case at trial. The mediation helps the lawyer gain a significant amount of knowledge about the case.
Hospitals also should expect to encounter some resistance from their defense counsel about becoming involved in the mediation process. Many defense lawyers view mediation as an attempt to put them out of business. While it is aimed at reducing hospital litigation costs, defense lawyers can be assured they will always be needed in the process. Risk managers should make it clear to defense lawyers that the mediation is now becoming part of the settlement process for certain cases. The lawyers also need to know that if they are hired to represent the hospital in a mediation, and the mediation fails, the hospital will then use them at any ensuing trials, Brown advises.
All of the discussions at a mediation should be kept confidential, Lerner says.
A hospital-based mediation program may not be efficient for everyone. Hospitals interested in establishing a program should first study the size of jury verdicts and their average defense costs, because a hospital-based mediation program can be costly, Brown says.
At Rush Presbyterian-St. Luke's, the hospital contributes to the cost of training its mediators. The hospital also splits the cost of the mediation, including paying the mediators hourly rates of upwards of $300 per hour, with the plaintiff. But mediation typically takes only one to three days, at up to six hours a day, compared to lengthy trials that require extensive preparation.
Despite some bumps in the road, Rush Presbyterian-St. Luke's has been so pleased with its initial successes with the program that it plans to expand the number of cases it is mediating.
"Mediation makes so much sense to everyone who participates that it will overcome any obstacles," Brown says.
[Editor's note: Rush Presbyterian-St. Luke's Hospital welcomes any inquiries about its program. For additional information or advice on setting up a hospital-based co-mediation program, call Jerome Lerner at (312) 942-6886.] *
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