medical malpractice mediation study for new york city operated hospitals: barriers and successes acr...

Medical Malpractice Mediation Study for New York City Operated Hospitals: Barriers and Successes

ACR Health Care SectionTeleseminar - December 5, 2006

Copyright 2005 Chris Stern Hyman

Origins of the Project

Discussions between 2000 and 2002 with three New York City agencies Columbia Law School sponsored the

study and received a grant in 2003 Columbia University’s Institutional

Review Board approved the study One-year observational, feasibility

study began in 2004Copyright 2005 Chris Stern Hyman

Objectives of the Study

Offer mediation for medical malpractice cases against NYC HHC

Document the results of mediations Assess client, attorney and other

participants’ satisfaction with and attitudes toward mediation

Publish an articleCopyright 2005 Chris Stern Hyman

Selection Criteria for Cases

Completed medical review Case was not a candidate for City’s

early settlement program Estimated exposure less than

$400,000 (lifted during the study) No physician named as co-

defendant


Cases Referred/Mediated in Study

29 med. mal. cases referred by city5 plaintiff’s attorneys declined

24 cases accepted mediation offer: 2 settled before mediation 3 not able to be schedule for mediation 19 were mediated


Participants in Mediations

Co-mediators Plaintiff’s and defendant’s attorneys Plaintiff (16/19) Rep. HHC (17/19) Rep. Comptroller’s Office (10/19) Family members or friend (7/19) Translator/paralegal (4/19)

© 2006 Chris Stern Hyman

Case Mix

19 cases mediated with allegations:8 failure to diagnosis or treat6 surgical error3 injury during a procedure1 medication error1 incorrect diagnosis

5 of the 19 cases were wrongful death cases


Discovery in Cases Mediated

6 no discovery (3 settled) 9 plaintiff deposed (7 settled) 2 plaintiff and some or all of

defendant depositions completed(1) 2 discovery complete and cases on

trial calendar (2 settled)


Year Action Commenced for Mediated Cases

1995 = 1 case (settled) 2001 = 2 cases (neither settled) 2002 = 3 cases (all settled) 2003 = 13 cases (9 settled)


Settlements

13 cases settled, 6 did not Ranged from $17,500 to $400,000 Median was $111,000 1 monetary and non-monetary

settlement 7 of 13 apologies of sympathy 3 of 13 apologies of responsibility


Apologies

Apology of sympathy -“I’m sorry this happened to you.”

Apology of Responsibility -“I’m sorry I/we did this to you.”

-Use when liability is clear and after consultation with risk manager or lawyer.

Copyright 2004 Chris Stern Hyman and Carol B. Liebman

Apology of Responsibility

Case of Apology of Responsibility:Mr. H suffered from asthma and went

to the ER because of difficulty breathing. He was there for 14 hours and went into cardio-pulmonary arrest. Resusitation

attempts were unsuccessful.©2006 Chris Stern Hyman

Apology of Sympathy

Case of Apology of Sympathy:Mr. J was a vital, independent man in

his 90’s. He fell from his chair in a rehabilitation facility, broke his hip, injured his shoulder, and lost his independence. He returned home isolated and dependent.


Mediators’ Data

Next 3 slides contain data compiled from answers given by mediators in the structured interviews following each mediation.

0

0.5

1

1.5

2

2.5

Plaintiff's Attorney(29 answers

before, 37 after)

Defense Attorney(35 answers

before, 37 after)

BeforeMediation

AfterMediation

Slide 15 - Attorneys’ Attitude Towards Mediation

SCALE: 1=very favorable, 2=favorable, 3=neither, 4=unfavorable, 5=very unfavorable


2.3

2.0

1.61.7

Mediators Assisting Attorney

Case of plaintiff’s attorney asking the mediators for help:

Mr. C’s nose was lacerated because an IV pole fell on him. He claimed it also caused neck pain, but the medical records from a car accident indicated a pre-existing injury.


00.20.40.60.8

11.21.41.61.8

Plaintiff's Attorney(37 answers)

Defense Attorney(38 answers)

Slide 17 - Attorneys’ Preparation

SCALE: 1=very prepared, 2=prepared, 3=neither, 4=unprepared, 5=very unprepared


1.8 1.4

Attorneys’ Data

Next 9 slides contain data compiled from answers given by attorneys in the structured interviews following each mediation.

0

10

20

30

40

50

60

Plaintiff'sAttorney

(11 cases)

DefenseAttorney

(13 cases)

Very Satisifed

Satisfied

Neither

Dissatisfied

VeryDissatisfied

Slide 19 - Satisfaction with Settlement


%

4

6

1

5

7

1

05

10152025303540

Plaintiff'sAttorney

(17 cases)

DefenseAttorney

(19 cases)

Very Satisfied

Satisfied

Neither

Dissatisfied

VeryDissatisfied

Slide 20 - Satisfaction with Process


%

6

65

4

2

7

12

3

0102030405060708090

Plaintiff'sAttorney

(16 cases)

DefenseAttorney

(18 cases)

GrosslyExcessive

Excessive

About Right

Insufficient

GrosslyInsufficient

Slide 21 - Time in Joint Session


%

1

2

13

3

14

1

0102030405060708090

Plaintiff'sAttorney

(16 cases)

DefenseAttorney

(18 cases)

GrosslyExcessive

Excessive

About Right

Insufficient

GrosslyInsufficient

Slide 22 - Time in Caucus


%

2

14

2 2

14

The Mediators Were Impartial

01020304050607080

Plaintiff'sAttorney

(18 cases)

DefenseAttorney

(19 cases)

Strongly Agree

Agree

Neither

Disagree

StronglyDisagree


%

13

3

1 1

7

9

12

Competing Interests

Case of client and attorney having differing goals for the mediation:

Ms G was 18 when she had a breast reduction procedure. After surgery she wore same bra size and had scarring. She wanted 2nd procedure for reduction and for scarring.


If I Had It To Do All Over Again, I Would Encourage My Client to Mediate Again (ONLY ON PLAINTIFF’S ATTORNEY’S QUESTIONNAIRE)

0

10

20

30

40

50

60

70

Plaintiff's Attorney (16 cases)

Strongly Agree

Agree

Neither

Disagree

StronglyDisagree


%

10

3

12

In the Future, I Will Be Favorably Disposed to Mediation of Other Medical Malpractice Cases

0

10

20

30

40

50

60

Plaintiff'sAttorney

(17 cases)

DefenseAttorney

(15 cases)

Strongly Agree

Agree

Neither

Disagree

StronglyDisagree


%

7

5

21

2

9

6

Compared to the Settlement Reached In Mediation, I Believe That If I Had Gone to Trial, The Monetary Settlement Would Probably Have Been:

0

10

20

30

40

50

60

Plaintiff'sAttorney

(12 cases)

DefenseAttorney

(13 cases)

Much LessFavorable toPlaintiffLess Favorable

About theSame

More Favorable

Much MoreFavorable


%2

5 5

3 3

7

Plaintiffs’ Data

Next 8 slides contain data compiled from answers given by plaintiffs in the structured interviews following each mediation.

0

10

20

30

40

50

60

70

Plaintiff (9 answers)

Very Satisifed

Satisfied

Neither

Dissatisfied

VeryDissatisfied

Slide 29 - Satisfaction with Settlement


%

1

2

6

05

101520253035404550


Very Satisfied

Satisfied

Neither

Dissatisfied

VeryDissatisfied

Slide 30 - Satisfaction with Process


%

3

5

2

1

Non-Monetary Remedy

Case of a non-monetary remedy:Mr. L, in his 30s with sickle cell

anemia, went to ER twice in 3 days. On 2nd visit family saw no attending physicians and staff could not answer their questions. It was the day before a national holiday.


0

10

20

30

40

50

60


Very Important

Important

Neither

Unimportant

VeryUnimportant

Slide 32 - How Important Is It To You That You Received Your Settlement Money Sooner Than You

Would Have Had You Gone to Trial?


%

5

1 1

2

In the Mediation, I Got a Better Understanding of the Hospital’s Side of the Story

0

5

10

15

20

25

30

35

40


Strongly Agree

Agree

Neither

Disagree

StronglyDisagree


%

2

4 4

1

If I Had To Do It All Over Again, I Would Choose Mediation Again

0

10

20

30

40

50

60

70


Strongly Agree

Agree

Neither

Disagree

StronglyDisagree


%

7

1 1 1

If a Friend of Family Member Had a Medical Malpractice Case, I Would Encourage Him or Her to Try Mediation

0

5

10

15

20

25

30

35

40

45


Strongly Agree

Agree

Neither

Disagree

StronglyDisagree


%

4 4

1 1

Compared to the Settlement Reached In Mediation, I Believe That If I Had Gone to Trial, The Outcome Would Probably Have Been:

0

5

10

15

20

25

30

35

40

45


Much LessFavorable

Less Favorable

Neither

More Favorable

Much MoreFavorable


%

3

2 2

Limitations of Study

Small sample size Cases only from government

facilities Exclusion of cases with named

physician defendants


Findings of the Study

High satisfaction levels of all participants with mediation

Cases with limited or no discovery were successfully mediated

Attorneys spent 1/10 time preparing case for mediation vs. trial

Apology and settlement are associated Cases less likely to settle with no plaintiff

present at mediation Plaintiff’s attorneys ask mediators for help


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