Latent Symptoms: The Medical Malpractice Mediator
By Paul J. Molinaro, M.D., Esq.
The first part of this three-part series addressed the physician defendant. The second part addressed the plaintiff. As discussed in those parts, the physician defendant and plaintiff each carry a set of psychological symptoms into the medical malpractice case that, if left unaddressed, surface at the worst possible times, such as when providing testimony, during mediation, or in the court’s hallway within earshot of the jurors. Counsel for the parties are in a position to help their clients manage their latent symptoms. This third part in the series addresses the mediator, who has the job of recognizing and managing the parties’ symptoms while helping them work toward a resolution of the case.
Counsel for the parties have months, and sometimes years, to work with their clients to sort through the emotional baggage that will prevent them from presenting their best sides. The mediator receives a brief about a week before the mediation, has a pre-mediation phone call with the attorneys a day or two prior to mediation, and does not meet the parties until the day of mediation. In keeping with the medical analogy, the attorneys are like internists, because they can take their time in reaching diagnoses and implementing treatment plans. The mediator is like an emergency room doctor, who has to work quickly to determine the most likely diagnosis and begin treatment. Counsel can help by using the brief and the pre-mediation call to give the mediator a history, including what the parties are feeling. Counsel can also tell the mediator whether there are settlement terms other than money that may be possible, such as an apology without admission of liability, a change in a healthcare provider’s protocols, non-disparagement, and confidentiality.
The Manifestation of Symptoms
Parts one and two identified the latent symptoms of the plaintiff (anger, betrayal, shame) and the physician defendant (anger, anxiety, depression, self-doubt). Not every plaintiff or physician defendant will have these feelings, but the mediator should be able to recognize them and act accordingly. The mediator’s initial meeting with the plaintiff is an opportune time to allow the plaintiff to present the case in his or her own words. After obtaining permission from counsel, the mediator may ask the plaintiff to take ten or fifteen minutes to explain what happened in layman’s terms without worrying about the legal aspects. The mediator can ask appropriate questions directly to the plaintiff at this time. This interaction builds rapport and gives the mediator the chance to form an opinion as to what issues affect the plaintiff, as well as the plaintiff’s credibility and ability to present his or her side of the case coherently. When the mediator then meets with the physician defendant, he or she can do the same. This initial interaction is also important because if the case does not go to trial, it may provide the only opportunity for each side to be heard by a neutral. Being heard is often an overlooked but extremely important need of both parties. Having the physician defendant attend mediation is preferable, but in my experience, most physician defendants do not attend. When the physician is absent, the mediator can ask defense counsel how the physician is coping with the litigation and what concerns he or she has about the case and its resolution. Those concerns are present at the mediation even when the physician is not.
While the mediator has the two jobs of identifying the issues affecting the plaintiff and the physician defendant, he or she also has a third job, which is to be aware of his or her own biases with regard to the medical malpractice case. The idea that physicians may make mistakes, that the law allows for acceptable risks to occur, and that the standard of care requires a physician to be, in a word, “average,” can unsettle mediators as much as it unsettles the parties. Mediators may develop a dislike for an arrogant and sarcastic surgeon or an overly dramatic and exaggerating plaintiff. Mediators may favor a physician who expresses remorse for the outcome while denying a breach in the standard of care or favor a plaintiff who suffered horrendous harm as a result of an acceptable risk. Even mediators who believe that they understand the medicine, should pay careful attention to the expert witness opinions and give them proper weight. When expert testimony is required, which is the case in most medical malpractice trials, jurors are instructed to determine the standard of care based on the testimony of the expert witnesses, which can include the testimony of the physician defendant. Causation generally must also be established through expert testimony to a reasonable medical probability. At the same time, jurors are told that they are not required to accept any expert’s opinion and may decide how much weight to give it. As a result, the outcome of a medical malpractice trial often turns on which experts the jury finds more credible. Recognizing one’s own biases when mediating allows a mediator to keep those biases in check.
Knowledge Is the Cure
The mediator is not tasked with curing or eradicating the parties’ emotions and issues but with managing them. Management is done through knowledge. With each party, the mediator can openly identify the issues, name them, and normalize them. With regard to money, the mediator can acknowledge that it is understandable for either party to feel that a medical malpractice case should be about more than money. The mediator can then explain that, despite that feeling, a trial will end with a judgment for the physician defendant, with no money paid, or a judgment for the plaintiff, with a specific amount of money paid.
There are no other court-ordered outcomes. The court will not order anyone’s license to be revoked, anyone to apologize, or anyone to admit fault. Whether one wants to acknowledge it or not, the case is about money. Understanding this limitation of the legal system, and knowing that the lawyers and judges all understand it, helps both parties. The plaintiff can pursue compensation without feeling greedy, and the physician defendant can view the monetary demand as a function of the legal system rather than as a judgment of his or her character or competence.
Mediation may provide an alternative to these limitations. A settlement can include terms that no court can order, such as a change in a healthcare provider’s protocols, non-disparagement, or confidentiality. A physician defendant who wishes to express sympathy for what the plaintiff has experienced can also do so at mediation. California law provides some protection for these conversations. California Evidence Code Section 1160 makes expressions of sympathy inadmissible as evidence of liability, although it does not protect a statement of fault, and California Evidence Code Section 1119 generally keeps communications made in mediation confidential. Whether to offer such a statement is a decision for the physician and his or her counsel.
Another lesson to share is that, in my experience, the party who does not prevail at trial is often left with the lasting and unsettling belief that the jury “got it wrong.” Mediation allows the parties to participate in shaping the outcome rather than leaving it to a jury, and that participation can restore some of the sense of control that the litigation has taken from them. The mediator should make clear that whether to settle is each party’s decision, made with the advice of counsel and, for the physician defendant, typically with the involvement of the insurer. The physician defendant may also benefit from a reminder that malpractice insurance exists for exactly this situation. Physicians carry it because being sued is a foreseeable part of practicing medicine, whether or not any mistake was made.
The mediator should avoid steering the parties toward a settlement that he or she personally views as fair or just for this particular plaintiff or physician defendant. The parties and their counsel will decide the outcome. The mediator’s role is to provide information and guidance that help the parties reach a resolution both sides can accept on that day and at that mediation.
The physician defendant, the plaintiff, and the mediator each bring latent symptoms to a medical malpractice case. When those symptoms are diagnosed early and treated honestly, the parties can make decisions based on the merits of the case rather than on fear, shame, or bias. Justice is best served when everyone at the mediation, including the plaintiff, the physician defendant, and the mediator, is given the best chance to do his or her best.
Paul J. Molinaro, M.D., Esq. is a mediator and arbitrator with Alternative Resolution Centers specializing in medical malpractice, personal injury, and products liability. He can be reached at pmolinaro@arc4adr.com.