Talking about medical negligence in mediation

As in so many other areas, the language we use in medical negligence cases can either help or harm the mediation process. Words should be chosen in such a way as to facilitate and build trust rather than to antagonize and foster an unnecessarily adversarial approach.

First, doctors are generally people who enter a profession to help others and save lives. They are highly educated and trained through years of working and studying very long hours. They often have to decide between imperfect choices in caring for sick patients, without knowing in advance the outcome. Like anyone, of course, doctors can make mistakes or errors in judgment.

Thus, it is wrong to refer to the parties as “wrongdoers” or “perpetrators” and “victims” like there were a crime committed. A doctor who makes a simple error is not generally a worse person than someone who causes a car accident. The legal system is here to correct his mistake and ask that he pay money to make up for the harm caused.

It is also fair to say that the defense of such a case usually involves pointing out that a doctor treating a patient prospectivelydoes not know the outcome, while a critique of his performance later generally comes retrospectively, using hindsight after the outcome is known.

To be sure, there are cases of physician impairment or outright neglect in some instances, and they should be addressed accordingly when they do occur, but these are not the majority of situations. The human body is the most complex thing in nature, it is still not fully understood, and the reaction to diseases and treatments sometimes involves very difficult choices.

Having tried a few of these cases for both sides, it is my experience that there is nothing more challenging for attorneys and their clients. Plaintiffs may be devastated or heartbroken over loss of a loved one. Doctors who have devoted their entire lives to their practices may be frightened and shaken to be accused of malpractice. In either case, often the attorney is the lifeline and the clients, if they trust the attorney, want to follow his or her lead because this is uncharted territory for them.

On the other hand Plaintiffs may feel they are somehow letting down a loved one if they “settle his case too cheap.” Doctors, on the other hand may feel that they need to defend a principle, or that settlement will leave a stain on an otherwise impeccable reputation.

Thus, talking about doctors, patients, family members and their representatives with respect, and in terms of this being a difficult situation for all, can alleviate at least the unnecessary pressures created by the litigation and adversarial process. A drawn out litigation proceeding, lengthy trial, brutal cross examinations, long court days, many thousands of Dollars spent and a risky result may be the last thing anyone needs.

Mediation can be a way of letting people express feelings, and then move on with their lives. Getting the legal processes out of the way lets both the doctor and the patient or family obtain closure and put their problems behind them, a necessary part of healing.

Hopefully a doctor can remove the dark cloud from over his head and return to practice with a positive outlook, feeling he or she did the right thing. Hopefully a patient or family can put a tragic event behind them and heal.

By speaking in a non-pejorative way and respecting all parties and their positions, attorneys and mediators should help to establish trust, allow parties see the emotional as well as financial benefits of settlement, and begin the healing process after mediation.