Avoiding the uncertainty of a medical malpractice trial

 By Richard Bone

Alternative dispute resolution (ADR) provides viable and attractive alternatives to jury trials as a means of resolving medical legal disputes arising out of allegations of professional negligence. The two primary alternatives to a jury trial for medical malpractice cases are mediation and binding arbitration.
When your client goes into court for the resolution of alleged professional negligence, they are putting their fate into the hands of six people who usually have no medical background. If they do, they are often removed by a peremptory challenge. That leaves the parties with a jury made up of individuals who have no medical knowledge, other than their own personal experiences, and would rather be doing something else. In some locations as many as one half of those summoned for jury duty refuse to show up. Studies have shown that those who do appear are often angry at the inconvenience and the amount of time involved, especially in a medical malpractice case. Their anger is often manifested in the verdict, producing widely variable and unpredictable results. Many jurors are simply not capable of fully understanding the medical issues involved in these cases.
 As a result, cases are decided on peripheral issues that have nothing to do with the facts, the medicine, or the law. Also, with the internet available on smart phones, notwithstanding the admonition by the court that no research can be done by the jury, the temptation is too great for some and the internet is searched. I have personal experience of this happening as reported by another juror on the panel. This usually calls for a mistrial or appeal only to prolong the litigation and incur more expense. Despite strict instructions from the court, more jurors are choosing to become “experts” on the issues and are bringing into the courtroom information never presented within the rules of evidence.
The role of geography in determining the outcome of medical liability cases is another reason to choose ADR. Counties within the state have vastly different patterns in jury verdicts. I have tried a case in a county in Michigan where a jury verdict, in a medical malpractice case has never been rendered for a plaintiff. We also know that in some counties very large verdicts are rendered for plaintiffs. ADR alleviates this uncertainty. Virtually identical fact patterns can produce extremely disparate results depending upon where the case is tried.
The cost of taking a medical malpractice case to trial is very expensive. Expert witness fees, depositions, securing and organizing voluminous medical records and medical illustrations, and other cost can result in out-of-pocket expenses that would be prohibitive for many plaintiffs and a significant factor for malpractice insurance carriers. Plus potential sanctions from case evaluation can also be a significant factor. Time is equally important. In some jurisdiction, cases can be prepared and tried relatively quickly. In others, it can take years to conclude with the potential for an appeal to delay the process even longer.
As a result medical liability cases have become a gauntlet and an endurance contest that, when combined with the unpredictable results, makes ADR an increasingly more palatable option for resolution.
The ADR options remove many of the above mentioned concerns. The parties participate in mediation and have a voice in the proceedings and a say in the ultimate outcome. Mediation is also voluntary, meaning that although mediators may often be asked to express their opinion, neither party can be forced to settle a case at mediation. Often, by agreement if the case is not settled, the mediator will place a “mediator’s number” on the case which would have the same effect as though the dispute was case evaluated. I think this can be beneficial in that the mediator, often with subject matter expertise, who should have a good understanding of the case, usually can put a more meaningful number on the case for both parties to seriously consider. This can be an important number for both. Mediation is not perfect in the sense that usually one party leaves with less than expected and the other paying more than expected .It is however, quick, cost-effective, informal, voluntary and final. 
Arbitration also has desirable characteristics, however it is typically binding and final, with a few exceptions. It is cost effective, less formal than a trial and vastly more predictable than a jury. Both mediation and arbitration eliminate the previously mentioned vagaries and pitfalls of jury trials. They eliminate the exorbitant costs to the parties and the years it often takes to get to trial. Arbitrations also tend to weed out extreme results and those based on peripheral issues that have nothing to do with the medicine.
There is also a relatively new twist on mediation and arbitration and it is called MED/ARB. This is a process wherein the case proceeds to mediation in the normal fashion and if the case does not settle the mediator then becomes the arbitrator and hears the case as the arbitrator with binding authority. I will not go into detail on MED/ARB in this article but only mention it so that you are aware of this increasingly popular procedure. This type of ADR has been conducted with a great deal of success. Going into mediation the parties know the case is going to be resolved either by settlement or an arbitration award and it brings finality to the process with all of the advantages listed above.
Predicting the role of ADR in medical liability cases is difficult but the prevailing opinions are that it is becoming more and more prevalent in medical malpractice litigation. If all parties come to the mediation in good faith to settle the case, in my experience, ADR, is very effective.  The difficulties of resolving medical liability cases by jury trials are becoming more and more pronounced. Choosing ADR to resolve this type of litigation has proven to be beneficial and I am sure will continue to be into the future.
Richard Bone has more than 40 years of experience in the field of medical malpractice.

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