As mediators, we need to remain informed about new and innovative approaches to dispute resolution in niche contexts, so we can analyze the reasons for their success, and advocate for their broader use in other arenas where they may also prove helpful.
One such development is the growing adoption by hospitals of what are known as communication and resolution programs, or CRP’s, which are designed to effectuate a systematic approach to resolving claims arising out of medical error. Under these programs, hospitals and their clinicians commit to a series of “best practices” in responding to patients injured during medical treatment. Based on research (discussed further below) showing that CRP’s are an effective strategy for resolving medical claims more quickly and less expensively, preventing future medical errors, and cultivating high-quality, patient-centered healthcare, a recently formed network of physicians, attorneys and insurers — the Collaborative for Accountability and Improvement — has been seeking to accelerate adoption of CRP’s at hospitals nationally and internationally.
CRP’s address the needs of three distinct groups affected by adverse medical outcomes:
patients and their families
physicians and other healthcare workers, and
With respect to injured patients and their families, CRP’s are designed to provide a transparent explanation of what occurred, emotional support that communicates empathy, and information about steps being taken to prevent recurrences of the error. Patients are also advised of their right to obtain legal representation. At the same time, if a hospital determines that the adverse outcome was caused by a departure from the standard of care, CRP’s contemplate a proactive offer of fair compensation.
CRP’s also provide guidelines to help doctors and other healthcare providers communicate with patients and their families about an adverse outcome in a manner that rebuilds trust and promotes dialogue.
Finally, at the organizational level, CRP’s stress the immediate reporting of adverse events, prompt investigation of their causes, and developing plans to prevent recurrences.
Research indicates that CRP’s reduce the time required to resolve adverse medical outcomes, and decrease defense and liability costs. For example, one study reported in the Journal of Patient Safety and Risk Management compared liability outcomes before and after implementation of a CRP at a healthcare system in Tennessee in January 2009. The study found that compared to the period prior to implementation of the CRP, there was a decrease in the average number of new claims filed, as well as a reduction in defense, settlement, and total liability costs.
Another study published in JAMA examined patient reactions to CRP’s. It found that patients were generally satisfied with the CRP process. Among other things, patients and family members said they valued the opportunity to be heard by the hospital and the attending doctor, and to discuss options for resolution.
The apparent success of CRP’s in the healthcare arena raises the question as to whether certain CRP “best practices” can be deployed in other contexts such as employment discrimination disputes. I am not an employment attorney, and thus do not know whether there exists a similar movement to formalize “best practices” for early resolution of workplace disputes. But to the extent there is not, and approaches are more ad hoc, CRP “best practices” may be worth a closer look by human resource professionals and employment attorneys.
Of particular interest is the research cited above finding that patients valued the opportunity to be heard. If we analogize employees complaining of discrimination to patients who suffered injury, structuring dispute resolution in the employment context to provide employees with a meaningful opportunity to vent and feel heard about the bases for their allegations might also help resolve claims more quickly at lower cost.