June 01, 2005 - Medical Professional Liability Update - June 2005
Taking a Medical Malpractice Case to Mediation: A New Option in Philadelphia
Medical malpractice litigation in Pennsylvania has undergone a sea change over the last several years. One obvious change occurred with the new venue law, which went into effect for cases filed on or after January 1, 2002. Under the law, litigation must be brought in the county with the most logical connection to the incidents on which suits are based. For plaintiff attorneys, this has meant loss of the advantage of venue shopping. The reality for both defense and plaintiff counsel however, is that many fewer cases are being filed, and those put in suit tend to involve genuine issues of liability and more serious damages.
The second major new influence on medical malpractice litigation is the advent of mediation for resolution of these cases. While mediation is hardly a new concept, it is now being utilized in the Philadelphia area as a practical method of resolving medical malpractice dispute in certain instances. Mediation has been in use in western Pennsylvania for some time, and is only now beginning to be embraced in the Philadelphia region. Mediation is a viable alternative to litigation when all parties have a genuine interest in resolving the matter. Contrary to what many believe to be true about mediation, it is not binding unless and until all parties agree to the outcome, it does not automatically require defendants to offer payment, and it is not a means to access facts that can later be used at trial.
Mediation is the process by which parties to a medical malpractice dispute come together to craft their own resolution. The outcome of mediation is not court-directed, but instead is the result of the parties, with their counsel, working diligently and creatively to resolve the problem at hand. While a court in some instances can order parties to mediation, the court cannot require that the parties participate in, or accept the results of, the mediation. While in some types of mediations the parties may appear without representation, in the medical malpractice arena, typically all parties are represented by counsel. There can be either a single mediator or co-mediators, the choice generally resting with the plaintiff. In Philadelphia, such mediators are trained especially for serving in medical malpractice settings, and most often are themselves practitioners in this area. At the mediation, which can last for a full day, or which can occur over several days, the parties all sit at the table, and have the chance to talk and listen to each others' stories. To encourage mediation, confidentiality is guaranteed, as disclosures made at a mediation hearing are protected in Pennsylvania by statute, thereby prohibiting use of mediation materials and testimony at subsequent trial of the matter.
Mediation is structured much less formally than trial, although the preparation for each is extensive. A lawyer taking a case to mediation must be as fully prepared as she would be in taking a case to trial. Costs, however, are much lower for mediation, as the time spent actually mediating is almost always much less than at trial. For example, there are no expert witness appearance fees, as experts would testify only by way of reports. There are also generally many fewer witnesses at mediation than at trial, as frequently it is just the parties who testify. While parties have knowledge of all potential witnesses and their testimony, they need not spend time at mediation presenting and cross-examining them, again shortening the proceedings and limiting costs. Mediation also allows for a settlement not only with money, but often with other tangibles or intangibles, such as apology, change in a health care provider's policies, or funds committed to a specific purpose in memory or honor of someone.
Despite the positives which can come with mediation, the choice of mediation over litigation is still sometimes a difficult one for clients, attorneys and insurers to make. Clients often simply do not understand what mediation is, and is not, confusing it with arbitration. There remains belief among some defense litigators that mediation equals capitulation. Some insurance carriers may also be reluctant to see a case go to mediation because they believe that it is tantamount to agreeing to extend an offer for policy limits. These are misconceptions which are out of step with the reality of modern and professional dispute resolution. Above all else, the interests of the client must govern which route to take to resolve the dispute. For many cases, particularly those where the plaintiff's liability allegations are weak, trial will continue to be the most practical mode of resolution. In other instances, working for an appropriate resolution, and best protecting the health care provider and thereby ultimately the carrier as well, will mean using mediation. A litigation law firm committed to providing the best service to its clients will be one which offers an array of options for resolving disputes. A firm which offers the outdated "one size fits all" mentality of being able only to litigate does a disservice to its clients and to the profession. Clients deserve to have their needs analyzed and addressed in ways customized to their situations, with consideration given to their concern of costs spiraling upward, and the potential of "wild card" verdicts. Cutting edge lawyers and law firms, those producing the best service, value and results for clients, will embrace mediation without sacrificing their skills and successes at litigation; others will cling to their single weapon of litigation, and be left behind.
- Patricia L. Rizzo