Civil litigation is an adversarial system, but there do exist alternatives. It need not be one that drags parties through a second tragedy to prove or defend against the first. What alternatives do exist? CMG Law partner Gene Moen was recently featured on a Rhode Island PBS documentary entitled “A World of Hurt: How Medical Malpractice Fails Everyone“. The film discusses the mental toll of a medical negligence suit on the parties and suggests there may be less adversarial alternatives. Along the way the filmmakers depicted the toll on surviving plaintiffs to endure the difficult litigation process, and the tragic story of a defendant doctor taking his own life during the process.
The Washington medical negligence statute allows that an injured party may submit a written request for mediation to a medical provider they allege was negligent. This provides the opportunity for early resolution of a case in a less formal setting than litigation. In theory the offended party may request the mediation and the offending party’s insurance company can review the records and make a determination to resolve the case before the heartache and expense of litigation. In reality though defense liability carriers demonstrate little interest in resolving cases without a lawsuit.
Though it does not discuss it substantively, the filmmakers interviewed folks involved in the “Michigan Way,” a quality review system developed by the University of Michigan Health System in 2004. U-M Health aimed to reduce medical errors and the amount it was paying on claims by acknowledging medical errors, having a policy of “saying sorry” and having an open discussion when treatment didn’t go as planned. U-M claims that they review the incident to assess what happened, meet with the patient’s legal counsel (if one has been retained), and acknowledge when care is deemed below the standard of care, and explain how and where it was deficient to the patient. Sometimes patients decide to drop their claims.
U-M says that it has seen a steady reduction in the number of medical malpractice claims, medical malpractice expenses, and amount of time for the U-M Health system to pay plaintiffs. And the Health system has had to maintain significantly less reserves as a result. This system seems to work in the unique legal setting of the state of Michigan; a testament to that is that this has been the practice since 2004, but we are not aware of other states imitating their model.
We speak to folks every day who would benefit from even an apology, contrition, or some acknowledgement that the patient has suffered some sort of bad outcome.
The film did not delve into the role played by liability insurers in dragging many otherwise clear cases of negligence through difficult discovery, sometimes re-victimizing injured plaintiffs. Egregious examples occur more frequently than you’d think.
