Solving the Med-Mal Riddle Through Co-Mediation


Consider a new approach to the review and resolution of difficult medical malpractice claims alternative to the courts that does not require legislation.  The following co-mediation model offers and alternative to the present system only with the consent of  the current players.. As with any voluntary system, the incentive to opt in must be great enough to encourage active and good faith participation. So the system must be designed to remedy the current problems, meet the needs and address the misgivings of the participants, and have sufficient flexibility to allow for adjustments as the system develops.
This mediation model could make a significant difference should all parties participate in its design and implementation: mediation early in the case, either before or shortly after suit is filed, with “co-mediators”, one of whom is a physician and the other a process-oriented, interest-based professional mediator.
One key objective would be to screen cases for merit based upon scrutiny of the medical record through an open discussion of the existence, or not, of error, cause and of claimed injury or condition, and reasonable compensation if appropriate. The physician brings objective and neutral medical expertise and insight to the process. This role is not as much “evaluative” (to use mediation lingo) as it is probing for what actually happened and why, and how that might be considered in relation to the community standard of care. The physician leads a discussion with patients’ counsel, and the patients themselves as appropriate and helpful, along with the involved healthcare providers (physicians and provider organizations, most notably hospitals) and their counsel and insurers to create a framework within which the facts can be analyzed with unbiased focus.
The non-physician mediator contributes what good mediators do. That is to facilitate and guide an in-depth process that addresses the dispute at all levels, including the facts and law (i.e., the legal positions) and, even more importantly for this purpose, the interests of all parties, which are driven by needs, both financial and emotional, and in the case of the providers, professional as well.