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Medical Malpractice Mediation Study for New York City Operated Hospitals: Barriers and Successes
ACR Health Care SectionTeleseminar - December 5, 2006
Copyright 2005 Chris Stern Hyman
Slide 2 - Origins of the Project
Discussions between 2000 and 2002 with three New York City agencies Columbia Law School sponsored the
study and received a grant in 2003 Columbia University’s Institutional
Review Board approved the study One-year observational, feasibility
study began in 2004Copyright 2005 Chris Stern Hyman
Slide 3 - Objectives of the Study
Offer mediation for medical malpractice cases against NYC HHC
Document the results of mediations Assess client, attorney and other
participants’ satisfaction with and attitudes toward mediation
Publish an articleCopyright 2005 Chris Stern Hyman
Slide 4 - Selection Criteria for Cases
Completed medical review Case was not a candidate for City’s
early settlement program Estimated exposure less than
$400,000 (lifted during the study) No physician named as co-
defendant
Copyright 2005 Chris Stern Hyman
Slide 5 - Cases Referred/Mediated in Study
29 med. mal. cases referred by city5 plaintiff’s attorneys declined
24 cases accepted mediation offer: 2 settled before mediation 3 not able to be schedule for mediation 19 were mediated
Copyright 2005 Chris Stern Hyman
Slide 6 – Participants in Mediations
Co-mediators Plaintiff’s and defendant’s attorneys Plaintiff (16/19) Rep. HHC (17/19) Rep. Comptroller’s Office (10/19) Family members or friend (7/19) Translator/paralegal (4/19)
© 2006 Chris Stern Hyman
Slide 7 - Case Mix
19 cases mediated with allegations:8 failure to diagnosis or treat6 surgical error3 injury during a procedure1 medication error1 incorrect diagnosis
5 of the 19 cases were wrongful death cases
© 2006 Chris Stern Hyman
Slide 8 - Discovery in Cases Mediated
6 no discovery (3 settled) 9 plaintiff deposed (7 settled) 2 plaintiff and some or all of
defendant depositions completed(1) 2 discovery complete and cases on
trial calendar (2 settled)
Copyright 2005 Chris Stern Hyman
Slide 9 - Year Action Commenced for Mediated Cases
1995 = 1 case (settled) 2001 = 2 cases (neither settled) 2002 = 3 cases (all settled) 2003 = 13 cases (9 settled)
Copyright 2005 Chris Stern Hyman
Slide 10 - Settlements
13 cases settled, 6 did not Ranged from $17,500 to $400,000 Median was $111,000 1 monetary and non-monetary
settlement 7 of 13 apologies of sympathy 3 of 13 apologies of responsibility
© 2006 Chris Stern Hyman
Slide 11 - Apologies
Apology of sympathy -“I’m sorry this happened to you.”
Apology of Responsibility -“I’m sorry I/we did this to you.”
-Use when liability is clear and after consultation with risk manager or lawyer.
Copyright 2004 Chris Stern Hyman and Carol B. Liebman
Slide 12 – Apology of Responsibility
Case of Apology of Responsibility:Mr. H suffered from asthma and went
to the ER because of difficulty breathing. He was there for 14 hours and went into cardio-pulmonary arrest. Resusitation
attempts were unsuccessful.©2006 Chris Stern Hyman
Slide 13 – Apology of Sympathy
Case of Apology of Sympathy:Mr. J was a vital, independent man in
his 90’s. He fell from his chair in a rehabilitation facility, broke his hip, injured his shoulder, and lost his independence. He returned home isolated and dependent.
© 2006 Chris Stern Hyman
Slide 14 - Mediators’ Data
Next 3 slides contain data compiled from answers given by mediators in the structured interviews following each mediation.
0
0.5
1
1.5
2
2.5
Plaintiff's Attorney(29 answers
before, 37 after)
Defense Attorney(35 answers
before, 37 after)
BeforeMediation
AfterMediation
Slide 15 - Attorneys’ Attitude Towards Mediation
SCALE: 1=very favorable, 2=favorable, 3=neither, 4=unfavorable, 5=very unfavorable
© 2005 Chris Stern Hyman
2.3
2.0
1.61.7
Slide 16 – Mediators Assisting Attorney
Case of plaintiff’s attorney asking the mediators for help:
Mr. C’s nose was lacerated because an IV pole fell on him. He claimed it also caused neck pain, but the medical records from a car accident indicated a pre-existing injury.
© 2006 Chris Stern Hyman
00.20.40.60.8
11.21.41.61.8
Plaintiff's Attorney(37 answers)
Defense Attorney(38 answers)
Slide 17 - Attorneys’ Preparation
SCALE: 1=very prepared, 2=prepared, 3=neither, 4=unprepared, 5=very unprepared
© 2005 Chris Stern Hyman
1.8 1.4
Slide 18 - Attorneys’ Data
Next 9 slides contain data compiled from answers given by attorneys in the structured interviews following each mediation.
0
10
20
30
40
50
60
Plaintiff'sAttorney
(11 cases)
DefenseAttorney
(13 cases)
Very Satisifed
Satisfied
Neither
Dissatisfied
VeryDissatisfied
Slide 19 - Satisfaction with Settlement
© 2005 Chris Stern Hyman
%
4
6
1
5
7
1
05
10152025303540
Plaintiff'sAttorney
(17 cases)
DefenseAttorney
(19 cases)
Very Satisfied
Satisfied
Neither
Dissatisfied
VeryDissatisfied
Slide 20 - Satisfaction with Process
© 2005 Chris Stern Hyman
%
6
65
4
2
7
12
3
0102030405060708090
Plaintiff'sAttorney
(16 cases)
DefenseAttorney
(18 cases)
GrosslyExcessive
Excessive
About Right
Insufficient
GrosslyInsufficient
Slide 21 - Time in Joint Session
© 2005 Chris Stern Hyman
%
1
2
13
3
14
1
0102030405060708090
Plaintiff'sAttorney
(16 cases)
DefenseAttorney
(18 cases)
GrosslyExcessive
Excessive
About Right
Insufficient
GrosslyInsufficient
Slide 22 - Time in Caucus
© 2005 Chris Stern Hyman
%
2
14
2 2
14
Slide 23 -The Mediators Were Impartial
01020304050607080
Plaintiff'sAttorney
(18 cases)
DefenseAttorney
(19 cases)
Strongly Agree
Agree
Neither
Disagree
StronglyDisagree
© 2005 Chris Stern Hyman
%
13
3
1 1
7
9
12
Slide 24 – Competing Interests
Case of client and attorney having differing goals for the mediation:
Ms G was 18 when she had a breast reduction procedure. After surgery she wore same bra size and had scarring. She wanted 2nd procedure for reduction and for scarring.
© 2006 Chris Stern Hyman
Slide 25 - If I Had It To Do All Over Again, I Would Encourage My Client to Mediate Again (ONLY ON PLAINTIFF’S ATTORNEY’S QUESTIONNAIRE)
0
10
20
30
40
50
60
70
Plaintiff's Attorney (16 cases)
Strongly Agree
Agree
Neither
Disagree
StronglyDisagree
© 2005 Chris Stern Hyman
%
10
3
12
Slide 26 - In the Future, I Will Be Favorably Disposed to Mediation of Other Medical Malpractice Cases
0
10
20
30
40
50
60
Plaintiff'sAttorney
(17 cases)
DefenseAttorney
(15 cases)
Strongly Agree
Agree
Neither
Disagree
StronglyDisagree
© 2005 Chris Stern Hyman
%
7
5
21
2
9
6
Slide 27 - Compared to the Settlement Reached In Mediation, I Believe That If I Had Gone to Trial, The Monetary Settlement Would Probably Have Been:
0
10
20
30
40
50
60
Plaintiff'sAttorney
(12 cases)
DefenseAttorney
(13 cases)
Much LessFavorable toPlaintiffLess Favorable
About theSame
More Favorable
Much MoreFavorable
© 2005 Chris Stern Hyman
%2
5 5
3 3
7
Slide 28 - Plaintiffs’ Data
Next 8 slides contain data compiled from answers given by plaintiffs in the structured interviews following each mediation.
0
10
20
30
40
50
60
70
Plaintiff (9 answers)
Very Satisifed
Satisfied
Neither
Dissatisfied
VeryDissatisfied
Slide 29 - Satisfaction with Settlement
© 2005 Chris Stern Hyman
%
1
2
6
05
101520253035404550
Plaintiff (10 answers)
Very Satisfied
Satisfied
Neither
Dissatisfied
VeryDissatisfied
Slide 30 - Satisfaction with Process
© 2005 Chris Stern Hyman
%
3
5
2
1
Slide 31 – Non-Monetary Remedy
Case of a non-monetary remedy:Mr. L, in his 30s with sickle cell
anemia, went to ER twice in 3 days. On 2nd visit family saw no attending physicians and staff could not answer their questions. It was the day before a national holiday.
© 2006 Chris Stern Hyman
0
10
20
30
40
50
60
Plaintiff (9 answers)
Very Important
Important
Neither
Unimportant
VeryUnimportant
Slide 32 - How Important Is It To You That You Received Your Settlement Money Sooner Than You
Would Have Had You Gone to Trial?
© 2005 Chris Stern Hyman
%
5
1 1
2
Slide 33 - In the Mediation, I Got a Better Understanding of the Hospital’s Side of the Story
0
5
10
15
20
25
30
35
40
Plaintiff (11 answers)
Strongly Agree
Agree
Neither
Disagree
StronglyDisagree
© 2005 Chris Stern Hyman
%
2
4 4
1
Slide 34 - If I Had To Do It All Over Again, I Would Choose Mediation Again
0
10
20
30
40
50
60
70
Plaintiff (10 answers)
Strongly Agree
Agree
Neither
Disagree
StronglyDisagree
© 2005 Chris Stern Hyman
%
7
1 1 1
Slide 35 - If a Friend of Family Member Had a Medical Malpractice Case, I Would Encourage Him or Her to Try Mediation
0
5
10
15
20
25
30
35
40
45
Plaintiff (10 answers)
Strongly Agree
Agree
Neither
Disagree
StronglyDisagree
© 2005 Chris Stern Hyman
%
4 4
1 1
Slide 36 - Compared to the Settlement Reached In Mediation, I Believe That If I Had Gone to Trial, The Outcome Would Probably Have Been:
0
5
10
15
20
25
30
35
40
45
Plaintiff (7 answers)
Much LessFavorable
Less Favorable
Neither
More Favorable
Much MoreFavorable
© 2005 Chris Stern Hyman
%
3
2 2
Slide 37 - Limitations of Study
Small sample size Cases only from government
facilities Exclusion of cases with named
physician defendants
© 2006 Chris Stern Hyman
Slide 38 - Findings of the Study
High satisfaction levels of all participants with mediation
Cases with limited or no discovery were successfully mediated
Attorneys spent 1/10 time preparing case for mediation vs. trial
Apology and settlement are associated Cases less likely to settle with no plaintiff
present at mediation Plaintiff’s attorneys ask mediators for help
© 2006 Chris Stern Hyman