Alternative Dispute Resolution in Medical Malpractice

By Veronika Válová

For most of the people health is undeniably one of the crucial considerations in their lives. Any negligence arising from errors in diagnosis, treatment or after care seriously affecting the health of our own or our loved ones is perceived as personal tragedy. Patients or relatives bringing claims regarding any type of mistreatment are motivated by their need for justice to be done, which is usually expressed via  compensation.[1] What ADR techniques are used in those cases? And what does this process look like?

The main problem raised by patients and their relatives is inadequate quantity and quality of doctor-patient communication. Lawsuits are filed as a result of lack of communication and of the feeling that the doctor does not listen, does not speak openly or does not warn about possible problems regarding the diagnosis of the patients or their relatives.[2] The important motivation of the plaintiffs is usually a timely and truthful explanation of the situation, early apology, and expression of compassion. On the other hand, cases of medical malpractice are perceived as an extreme form of criticism, which has a big impact on their reputation and financial stability as well as emotional aspects. Therefore, doctors take a more defensive approach and deny such an apology, which is seen as admitting one's own mistakes. An early, honest, and respectful disclosure and apology lead to decrease of possible litigations regarding malpractice. The practice shows that reasonable support, prompt identification of negligently inflicted harm of patients, full disclosure and apology, even though the patient has no suspicion of negligence, should be adopted as a preventive measure and can be considered an ADR strategy.[3]

Mediation is widely used in malpractice cases and feels the most natural regarding such disputes. There are different mediation programmes, selected on a case-by-case basis. The most important forms are facilitative mediation, evaluative mediation, and transformative mediation. Timing of the Mediation is important, it should take place as soon as possible. Lawyers prepare all documents needed regarding information of the case and medical statements from experts. It is important that the lawyers involved present every possible scenario to the client in case the mediation process is not successful, alongside with the procedural steps and possible tricks from the opposing party. [4]

The most formal use of ADR in malpractice is arbitration, where the arbitration panel hears arguments of both parties and then decides. An arbitral tribunal will scrutinise the contractual and regulatory regime in connection with the dispute at hand. The main benefit of this option is the reputation and authority of the institution, which issues binding decisions regarding the dispute. Other benefits such as confidentiality of the case and cost effectiveness are appreciated by both parties. It is a quicker dispute resolution with easier rules of procedure and evidence than classic litigation, however still the closest to the formal court.[5]

In conclusion, all ADR techniques such as negotiation, mediation and arbitration are highly effective avoiding litigation and saving time and money for both parties. The ADR should be encouraged, but it should not become a mandatory step, as such cases include sensitive data and emotions. Negotiations and preventive measures are a good starting point in order to prevent litigation of the relevant disputes.

[1]Petr Sustek and Tomas Holcapek, 'Alternative Dispute Resolution in Medical Malpractice Disputes' (2016-2018) 22 Economic and Social Development, International Scientific Conference on Economic and Social Development: The Legal Challenges of Modern World (Zeljko Radic, et al, eds) 233

[2] Ashley A Davenport, 'Forgive and Forget: Recognition of Error and Use of Apology as Preemptive Steps to ADR or Litigation in Medical Malpractice Cases' (2006) 6 Pepp Disp Resol LJ 81

[3] Petr Sustek and Tomas Holcapek, 'Alternative Dispute Resolution in Medical Malpractice Disputes' (2016-2018) 22 Economic and Social Development, International Scientific Conference on Economic and Social Development: The Legal Challenges of Modern World (Zeljko Radic, et al, eds) 233

[4] MEDIATION OF A MEDICAL NEGLIGENCE CASE FROM THE PLAINTIFF’S PERSPECTIVE By: Michael J. Warshauer, < https://w-mlawgroup.com/wp-content/uploads/2014/05/24.MediationMedNeglCase.pdf> accessed 13 July 2021

[5] Petr Sustek and Tomas Holcapek, 'Alternative Dispute Resolution in Medical Malpractice Disputes' (2016-2018) 22 Economic and Social Development, International Scientific Conference on Economic and Social Development: The Legal Challenges of Modern World (Zeljko Radic, et al, eds) 233