What You Need to Know About Medical Malpractice Mediation
You have been hurt or injured because of the medical negligence of a doctor, nurse, hospital or a health maintenance organization such as: Aetna Health of California, Inc., CIGNA HMO Kaiser Permanente, United Healthcare of California and Western Health Advantage.
How are these medical malpractice cases resolved?
Sue the bastards!!! and Go To Trial!! NOT SO FAST
About 65% of all medical malpractice claims are dropped, dismissed, or withdrawn before trial or arbitration. There are a many reasons cases are dropped, dismissed, or withdrawn. Only about 10 % of all the medical malpractice case are resolved through trial or arbitration. However, the results for the victim / plaintiff is not encouraging, the physician or other healthcare provider wins in about 80% – 90% of the time.
Put it another way the victim/patient only wins 10% to 20% of the time. 80% -90% of the time the patient losses and often times faces an enormous cost bill from the defense, in cases that go to trial. Of all medical malpractice cases, roughly 25% of these claims are fairly settled during the pendency of the claim. According to a survey done by the American Medical Association in 2010, covering the years 2007-2008.
It has been my experience in medical malpractice cases that mediation is often helpful in resolving medical malpractice claims. Using mediation to resolve medical malpractice lawsuits clearly reduces cost, compensates a patient / victim for injury and often times will encourage changes in procedures at healthcare facilities to prevent recurrences of the mistake / negligence that led to the lawsuit.
Too often, however that avenue (mediation) for resolution goes unrealized. According to a study published in the Journal of Health, Politics, Policy and Law “Change will require medical leaders, hospital administrators, and malpractice insurers to temper their suspicion of the tort system sufficiently to approach medical errors and adverse events as learning opportunities, and to retain lawyers who embrace mediation as an opportunity to solve problems, show compassion, and improve care.”
Based upon my experience, anecdotal events, and some research about 70% to 80% of medical malpractice claims that went to mediation settled either during or following mediation for reasonable sums.
The MICRA Problem
California patients / victims face some unique problems. In 1975 the Medical Injury Compensation Reform Act (MICRA) of 1975 was a statute enacted by the California Legislature in September 1975 and signed into law by Governor Jerry Brown. The Supreme Court of California and the California Courts of Appeal have upheld most of MICRA. MICRA is the law in California.
MICRA places a cap on damages. Non-economic damages are limited to $250,000. Non-economic damages include claims for pain and suffering, loss of consortium and wrongful death. MICRA has no provisions to adjust the cap for inflation, so it has remained at $250,000 since California enacted it in 1975. Attorneys’ fees are capped and the fee decreases as the amount recovered increases. Recovered “means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. While economic damages are not capped, depending upon the age of the patient / victim past and future economic damages (loss of income/future loss of income) is difficult or impossible to prove. Likewise past medical expenses paid for by an insurance company (not an ERISA plan) while technically recoverable as a practical matter is not recoverable. Also large awards are subject to periodic payments, and it allows doctors to pay the award over time in certain circumstances. These various matters are covered in various sections to the California Codes. The codes include; Business & Professions Code Section 6146, Civil Code Sections 3333.1 and 3333.2, and Code of Civil Procedure Section 667.7.
I think you can see what challenges are presented. The wisdom of mediating medical malpractice cases is clear because:
The parties (plaintiff, defendant, insurance company and attorneys) control the outcome of the process.
Plaintiffs usually receive compensation relatively soon after their injury instead of waiting years to proceed with trial or arbitration.
Defendants (insurance carriers) do not have to pay for ongoing litigation, which can be considerable.
Even if mediation doesn’t resolve the case, it may create enough momentum to lead to a settlement.
So What is a Mediation?
Mediation is a method for settling disputes (medical malpractice claims) in which an experienced independent mediator helps the parties in achieving a mutually satisfactory settlement. A mediation will normally be attended only by the parties, their attorneys, the claims manager for the defendant’s insurance company and the mediator. Usually effective mediation can be completed in a day or less.
The mediation process is non-binding and entirely voluntary. The mediator does not have the power to “make a ruling” or “force a settlement.” The mediator’s role is to help the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them. A mediation session under California is completely private and confidential.
A mediation today typically begins with each “side” in separate rooms. The plaintiff / victim and her / his attorney in one room and the defendant, his / her attorney and often insurance company representatives in another room. The mediator usually first explains the format and discusses the confidential and non-binding nature of the proceedings with the plaintiff’s group. The mediator may ask the plaintiff’s attorneys what the case is about and ask about what issues are in dispute. Our office always prepares a very comprehensive brief about the case, including illustrations, citations and other evidence when necessary. Often our briefs are 20 to 30 pages, and we generally file them 10 days or longer before mediation. We also supply multiple copies to the defendants. Our office considers the mediation process as a very crucial step in assisting our clients to resolve claims fairly.
The mediator will then begin meeting with the parties in a series of private, confidential meetings. In these confidential meetings the mediator works with each party to scrutinize their respective positions and explore options for settlement. Normally, the mediator will do “shuttle diplomacy” with both sides for hours. Occasionally the parties will do a joint session, particularly in cases where the mediator believes it will be helpful. The shuttle diplomacy will continue either until the case settles or it becomes apparent that settlement cannot be reached. Even if case does not settle that does not mean it will not settle following the mediation. Often time mediators will continue to work with the parties to settle the case following the mediation.
According to the American Arbitration Association over 85% of all mediations result in a settlement. This is true even where all past attempts at settlement have failed. It is true even in case where the parties are pessimistic about the prospects of settlement.
The bottom line is that mediation is an effective tool. It brings all necessary parties to the bargaining table. Remember in private mediation both parties are their to try and resolve the claim. Mediation works because the mediator can help each side to “realistically” evaluate their positions and safely explore settlement options.
So if you have a medical malpractice case or a personal injury case and the opportunity for mediation presents itself it is an avenue that you may wish to explore. The resolution / settlement of your claim is in your hands. Remember though in serious injury cases it is always best to have an experience personal injury attorney on your side. As an experienced Pasadena personal injury / medical malpractice attorney, I have participated in hundreds of mediations. Should you have any questions, please call me at 626-796-6333 there is no charge for a consultation or you can contact me through my website . Remember the Law Offices of Richard M. Katz has been helping folks like you for more than 35 years.