The Ohio State University Moritz College of Law January 2010
ADR @ Moritz

The Benefits of Medical Malpractice Mediation

Chad NowardBy Chad Noward
Class of 2010

Healthcare reform is, to say the least, a prominent issue in the United States today. Medical malpractice and the costs associated with it are major pieces of the healthcare reform puzzle. One significant way that the healthcare system could be improved is through the use of mediation in medical malpractice disputes. Mediation offers a number of benefits to its participants and would also mark an improvement in the way that medical malpractice cases are handled. While the U.S. healthcare system certainly cannot be fixed overnight, the mediation of medical malpractice cases would be a major step forward in improving the way medical liability is dealt with in the United States.

Mediation offers a number of benefits in medical malpractice cases. For instance, mediation offers an opportunity for the parties to confidentially discuss matters other than money damages. In mediation, parties are free to, and in fact are encouraged to, discuss non-monetary matters that are important to them such as a potential apology, improved communication between the parties, and anything else the parties care to discuss. Such a conversation may provide relief to the patient but also give the healthcare provider an opportunity to come to terms with an error they may have made. Mediation is superior to malpractice litigation because litigation doesn’t present an opportunity for the non-monetary issues to be dealt with or discussed nor does it present an opportunity for the plaintiff to be recognized in ways other than monetary compensation, even if that is what the plaintiff is really seeking.

Mediation may also offer time and money savings, particularly if it occurs early in the process. Medical malpractice cases, if they are not settled, may take up to three or four years to be resolved.. Mediation of medical malpractice cases often occurs within several months of a plaintiff filing suit, providing the parties with a relatively quick process in which they control the outcome. In addition to saving the parties’ time, early mediation can also help the parties (and their attorneys) avoid the often very high costs of conducting discovery and preparing expert witnesses. Mediation may also save the time and resources of the courts involved in medical malpractice cases as it can be helpful in avoiding lengthy, complex trials. Mediation of medical malpractice disputes can indeed result in time and money savings.

The mediation of medical malpractice disputes offers a number of benefits to plaintiffs, health care providers, and even courts. Medical malpractice mediation programs have proven to be successful in a number of states, including Illinois and Pennsylvania. The benefits of such mediation programs are significant. While there are indeed a number of steps that could (and should) be taken to address the glaring issues in the current medical liability system and the healthcare system in general, the mediation of medical malpractice disputes would be a major step in the right direction.

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The Caucus, the newsletter published by the Moritz Program on Dispute Resolution, is designed to share ADR news with the Moritz community and beyond, as well as provide Moritz students with information regarding externship and employment opportunities. Questions regarding this publication should be directed to Erin Archerd, Langdon Fellow in Dispute Resolution.