The ups and downs of med-mal mediation

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Negotiations offer benefits when lawyers avoid pitfalls of timing and audience

By Deborah Elkins
Dolan Media Newswires

When it comes to medical malpractice cases, “everybody doesn’t like something, but nobody doesn’t like” mediation.

For lawyers who appreciate the nuance of a double negative, the old slogan used to sell Sara Lee coffeecake captures the appeal of the mediation process.

Some of the motives that move any litigant toward mediation — confidentiality, a chance to be heard and the desire for a more predictable outcome — are stronger in medical liability matters than in other kinds of personal injury cases.

A lot of factors go into a decision to mediate a case, said Roanoke, Va., lawyer Powell M. Leitch III, who represents defendants. You size up the plaintiff’s case, consider what’s at stake for the doctor and look at where the case would be tried.

It’s a fact of life in all personal injury cases that certain injuries play better in front of a jury. “There’s a grimace factor that’s just human nature, that can make pitching things to a jury” more difficult, Leitch said. And “some cases just aren’t amenable to mediation, the parties are so locked into their positions.”

There may be an element of cold calculation to the decision to mediate, but lawyers also are thinking about the emotional mix. Mediation can be therapeutic for both sides, lawyers say, whether it’s an angry plaintiff or a defensive doctor.

A medical malpractice claim “is very personal to the physician,” said Richmond, Va., lawyer Stephanie Grana, who represents plaintiffs. With an auto accident case, attorneys primarily look at coverage issues and “peeling back the layers of the onion,” she said. But the doctor is concerned about his reputation in the community.

Sometimes a plaintiff is looking for something besides money, and mediation can make that happen. Maybe it’s an apology from a provider, or sometimes it’s a change in procedures.

Uncertainty about what a jury will do is the bedrock reason for mediating med-mal cases, lawyers say.

“I always feel a lot better” going into mediation in a med-mal case, Roanoke plaintiff’s lawyer Paul Thomson said. “When you’re suing a doctor or a hospital, a jury is much more likely to give a doctor or a medical facility a break.

“People like doctors and want to believe there’s a lot more” sound medical judgment backing up doctors’ actions than may be the case for a particular plaintiff,  Thomson said. “I never feel as confident” about what a jury will do in a med-mal case, as opposed to a “regular negligence case” involving a truck driver. The jury starts out thinking no doctor is ever going to harm someone, and it’s “always hard to chip away” at that perspective.

Timing isn’t everything

How much discovery gets done before the two sides talk varies from case to case and lawyer to lawyer, and success at mediation doesn’t necessarily depend on when it happens.

Sometimes a single expert’s review of a case is enough to let people know where they stand, and they can push for mediation or get serious about trial preparation.

More discovery may make it easier to predict an outcome at trial, but stretching the matter out may mean a doctor’s defenses harden or a financially strapped plaintiff gets desperate to settle.

Plaintiff’s lawyer Thomas G. Smith, of Fairfax, Va., said in his cases, the decision to mediate “is most often fairly late, after expert witnesses have been identified and deposed,” usually 30 to 60 days before trial. Before development of the case, “neither side is really willing to say, ‘Here’s how I value the case.’”

Preparation may mean more — or less — presentation.

Thomson often does a full-on case presentation at the mediation, with PowerPoint slides, accounts of witness testimony, expert depositions and videos.

Grana lays out her case in a PowerPoint and shares it with the other side before mediation to get the ball rolling.

If either sides goes in “very aggressively, it can create a negative tone” that is counterproductive, Smith said. Aggressive attacks “put the emotion back into the case.”

Crowd control

When a plaintiff’s suit names a surgeon, a practice group, a nurse and a hospital, managing multiple defendants can be a good reason to start shopping for a mediator.

Still, “the hardest cases to mediate are those with multiple defendants,” Smith said. “You can be four or five hours into the mediation, still with no decision on the percentage split.”

Leitch said sometimes multiple defendants agree to the settlement before they can apportion the debt. He has seen defendants have to separately arbitrate their shares of a settlement.

“Sometimes with three defendants, they think everyone should pay one-third,” only to have that assumption break down during mediation, said Roanoke plaintiff’s lawyer Anthony M. Russell.

But it can pay to be patient when the defendants begin to bicker.

“I’m OK with that,” Grana said. “They’re the ones with the checkbook.”

How does it end?

Sometimes it’s the plaintiff who is determined to settle a case at mediation. Smith said he was surprised at his first mediation at how determined the plaintiff was to settle the case that day. Some clients have to be reined in from making a bad deal.

When a mediation is over, it can be hard for a plaintiff to let go even after signing off on a settlement.

“There can be a grieving process,” Grana said. “You talk about it with your client, especially in death cases,” to help the client disengage and move forward.

It may be the insurance company that insists on going to trial. In other cases, the insurance company wants to settle but a doctor doesn’t.

Leitch has seen a certain ebb and flow in doctors’ liability policies during his 25 years in practice. Earlier, “the carriers did what they thought was most reasonable” to resolve a case, but as the marketplace for insurance became more competitive, some carriers began advertising that they would not settle cases without doctors’ consent.

More recently, the pendulum may be swinging back, with some reports of “hammer” clauses that make an insured personally liable for an excess judgment after the insured refused to settle a case.

Having a say in a settlement is not just an ego issue for doctors. They also have to think about state and federal reporting requirements when med-mal claims have been paid.

Reports going into the National Practitioner DataBank may not be available to the public but can play an important role for physician privileges and credentialing, said Richmond lawyer Elizabeth G. Robertson, who represents defendants. Doctors know that cases they settle go into their permanent record, even if they think they were not at fault.

Managing the mediation mix

There always are variables in personal injury mediation, but there also are tips that could keep the case out of the courtroom:

• Think about the audience when deciding how much of the case to put on.A plaintiff who wants to persuade a recalcitrant carrier may lay out the cold facts on valuing a case or emphasize the standard of care to a provider reluctant to reflect on what went wrong. The plaintiff’s lawyer may need to showcase his advocacy to his client.

  But remember to tailor the presentation to the target.

• Retired judges aren’t the only ones who can help settle a case. Don’t overlook the wily trial lawyer who’s eyeballed plenty of cases over the years. He may be more affordable.
• Don’t hold back.Take advantage of the confidentiality of the mediation process. The mediator is there to help the parties resolve the case and wants the parties to put their cards on the table when it comes to what happened, how the parties plan to prove their cases and what it will take to settle.
• Talk about how a defendant will pay out before sitting down to settle a case. Both sides waste time and money when mediation gets sidetracked by the defendants divvying up the bill.
• Help the client strike a balance between good-faith mediation and a desire to just “get it over with.” Some clients’ hopes are dashed when the case doesn’t settle that day, while others may not even be aware of their own reluctance to let go of the yearslong preoccupation or purpose of the litigation.