We have previously discussed the growing trend towards implementation by hospitals of Communication and Resolution Programs (CRP). To recap, CRP’s aim to foster transparent communication with patients and their families following an adverse medical event, including:
Studies of the results experienced by hospital and other facilities that have rolled out CRP’s indicate that — when implemented correctly — CRP’s have the potential to reduce litigation costs while also achieving other benefits such as improving patient safety and restoring the physician-patient relationship (see here, here, here, here and here).
To date, four states have enacted so-called “candor” legislation to encourage the adoption of CRP’s: Colorado, Iowa, Oregon, and Massachusetts. The statutes enacted in Colorado, Iowa and Oregon feature particularly strong protections for communications made in connection with CRP’s.
For example, the recently enacted Colorado statute provides that all discussions between healthcare providers and patients and their families concerning an adverse medical outcome under the purview of the statute do not constitute admissions, and are: (i) privileged and confidential; (ii) not subject to discovery, subpoena, or other means of legal compulsion for release; and (iii) not admissible as evidence in a proceeding arising directly out of the adverse health care incident, including a judicial, administrative, or arbitration proceeding.
The Iowa and Oregon statutes offer similar protections.
How Mediators Can Add Value
1. Shielding Communications From Disclosure
The existence of statutes shielding CRP communications from disclosure means that legislators have determined that certain parties may be deterred from participating in the CRP process due to concerns that what they say during CRP-related conversations may later be used against them in a proceeding. Otherwise, if there were no such concerns, the statutes would be superfluous.
So what about healthcare facilities and providers located in states without legislation protecting CRP communications? What steps can they take to shield their CRP communications from disclosure, and render them inadmissible, in any future proceeding?
Given that nearly all states afford some level of protection to mediation-related communications, it would appear that healthcare facilities and providers can better protect CRP communications with patients and their advocates — and thereby maximize the transparency and candor that are central goals of the CRP process — by involving mediators in the discussions.
To the extent fears that communications during the CRP process may be disclosed in a future proceeding have deterred participation in CRP’s, involving a mediator can allay those fears.
2. Bringing Dispute Resolution Skills to the Table
Beyond helping shield CRP communications from disclosure, it has been recognized that mediators can add substantial value to the CRP process by bringing skills to the table (such as active listening) that other participants may lack because dispute resolution is not their full-time occupation.
For example, the Oregon Patient Safety Commission (OPSC), which administers the states Early Discussion & Resolution (EDR) program, suggests that patients and healthcare providers participating in the program may wish to retain a mediator to help facilitate discussion and resolution, and ensure that the individual needs and interests of both sides are considered and addressed.
3. Negotiating Limited Discovery
Perhaps the strongest arguments for involving mediators in the CRP process were made in a 2004 paper entitled “A Mediation Skills Model to Manage Disclosure of Errors and Adverse Events to Patients,” and 2005 report entitled “Medical Error Disclosure, Mediation Skills, and Malpractice Litigation: A Demonstration Project in Pennsylvania,” both published by Carol B. Liebman and Chris Stern Hyman.
The publications discuss the results of a two-year CRP project with four Pennsylvania hospitals that taught mediation skills such as active and reflective listening to healthcare professionals in connection with medical error disclosures to patients, but also strongly advocate the use of mediation as soon as practicable after an adverse medical event occurs to increase the likelihood of a pre-litigation resolution of claims.
Liebman and Hyman acknowledge that it is often not possible to make a reasoned decision about liability and damages in a medical error case without conducting a limited amount of discovery. But they argue that the amount of discovery necessary to negotiate a fair settlement is different than the quantum of discovery required to try a case. They therefore advocate commencing mediation “as soon as possible after the hospital makes an assessment of its liability and its likely financial exposure and both parties have enough information to make an informed decision about the fairness of proposed resolutions.”
A key role then for mediators in the CRP process is to work with both sides to determine the minimum amount of discovery needed to productively discuss a fair resolution without litigation.
4. Fashioning Creative Non-Monetary Remedies
Mediators can also help fashion creative non-monetary remedies. On that note, the report observes that, while money is often critical in many cases (such as where the primary breadwinner can no longer work or has died), mediation participants often responded “to the non-monetary remedies with greater enthusiasm and emotional relief than they [did] to the financial terms.” Such non-monetary remedies can include an updated checklist for the procedure that caused injury, additional staff training, or a memorial lecture in memory of a deceased patient.
As an example, the report cites the outcome of a five hour mediation following the death of an elderly man in the emergency room; besides the mediator, the mediation was attended by the deceased’s widow, her brother, her lawyer, defense counsel, the hospital’s chief of medicine and director of risk management, and two representatives from the hospital’s insurance company:
Mr. D, an elderly man on Coumadin, arrived in the ER the morning after a fall. He was accompanied by his wife. Contrary to hospital policy, Mrs. D was not allowed to be with her husband during his final hours of life in the emergency room.
Mr. D was initially misdiagnosed as having an infection rather than internal bleeding. After a second reading of a CT scan later in the day the correct diagnosis was made, but he died before remedial steps could be taken. As soon as the hospital’s leaders learned of the error they talked to the attending physician who met with the widow to disclose what had happened.
At the mediation, the chief of medicine was able to listen empathically to the widow and respond with a full apology, acknowledging the hospital’s complete responsibility for the misdiagnosis and explaining exactly what treatment had been administered. He became the embodiment of the hospital for the plaintiff, which gave her the opportunity to express her rage and sadness and then her gratitude for his apology, his patience, and his clarifications. The widow at one point wondered whether events might have taken a different course had she been able to persuade her husband to go the ER immediately after his fall. She was reassured that she had done all that she could have and that had he gone to the ER the night of the accident it would have been too early for the bleed to show up on tests.
The presence and participation of the chief of medicine was healing for the widow, which probably could not have been accomplished by the hospital’s attorney or risk manager. His stature and his commitment of time to the mediation eloquently conveyed the hospital’s determination to accept responsibility and learn from its mistakes.
Early in the negotiation, the chief of medicine indicated in private session that he was not satisfied with simply working out a monetary settlement. It was important to him to give meaning to the loss of life. He suggested that the hospital fund an annual lecture in memory of the deceased. The plaintiff seemed moved by the idea and ultimately decided that a lecture would be an excellent memorial and that it should be on emergency medicine.
5. Handling Multi-Insurer Situations
In certain cases of medical error, multiple insurance companies may be involved (e.g., an insurer for the hospital, different insurers for different medical professionals involved in the incident). Working out allocation of coverage between multiple insurance companies can be thorny and may impede resolution. Mediators are experienced dealing with such situations and may be best positioned as a neutral to work out the allocation issue.
What about the Extra Cost?
Yes, adding a mediator to the CRP mix increases cost. But if the involvement of a mediator fosters greater candor, and more civil and collaborative dialogue, and leads to quicker and more satisfying resolutions, the extra cost will easily be offset by the avoidance of what otherwise might have been more protracted and combative discussions that do not lead to a pre-litigation resolution.