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Alternative Dispute Resolution in Medical Malpractice

Prachi Patel
Alternative Dispute Resolution in Medical Malpractice

Research Project Report


Submitted
Under The Guidance Of
Mr. Deepu Krishna
School of Law
Auro University

Alternate Dispute Resolution [Law128]


Semester X
[2012- 2017]

Submitted By:
Prachi Patel 312012005

2
Contents

Introduction: A need for Alternative Dispute Resolution in Medical Malpractice..............................4


Alternative Dispute Resolution as an substitute to Litigation .............................................................7
Negotiation .......................................................................................................................................9
Mediation .........................................................................................................................................9
Arbitration ......................................................................................................................................10
Mediation-Arbitration (Hybrid Process) ........................................................................................11
Current legal and political developments favouring Alternative dispute resolution .........................12
Morrison v. Therm-O-rite Products Corp., ....................................................................................12
Webb v. Priest et al. .......................................................................................................................13
Camp v. EMSA Ltd. ......................................................................................................................13
Obstacles ...........................................................................................................................................14
Comparison of ADR: Ireland, United Kingdom and Untied States ...................................................15
Ireland ............................................................................................................................................15
United States of America ...............................................................................................................15
United Kingdom .............................................................................................................................16
Conclusion .........................................................................................................................................17
Bibliography.......................................................................................................................................19

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Introduction: A need for Alternative Dispute Resolution in Medical Malpractice

“Vaidyo Narayanao Harih” has rightly said that Doctor is Narayana (God) Himself. Relationship
between two more human in any profession is solely give and take. Except for two professions which
does not stop but continues, one is teaching and another is healthcare. These are the two profession
where both teacher and doctor are next to God. Doctor is the one who heal our wounds and help us
keep the vehicle of our soul intact.1 Doctor and a patient carry a fiduciary relation where the patient
keeps the utmost confidence and trust in the doctor. The historical model says that patient is depend-
ent on doctor’s professional authority, believing that he or she would be benefited from physician
experience. As a result of which a paternalistic model of care developed. If the patient disputed with
the Physician’s declaration about appropriate care, their opinion were generally not call forth and
were ignored. After the Tort reform and Consumer Protection Act, 1986 the relation of Physician-
patient has developed towards sharing decision making. This model gave patient’s an autonomous
right to take various opinion, make a choice and take actions on personal values and beliefs. Patients
are also entitled to measure the risk and benefits to alternative treatments. This model educated the
patients in many ways,2 simultaneously the laws in health care become more stringent. Awareness
about health care laws starting spreading, and patients got alert. According to the law, doctors are
humans and so they were allowed to make certain mistakes. They have to maintain specific standard
of care in accordance with the circumstances of the cases. Over the years many claims were filed
against the health care providers for negligence. It is very important to understand the difference
between medical error and medical malpractice.3 Anie (patient) went to physician, while she was
suffering from Viral Hemorrhagic fever. Before prescribing medication, she filled a form of allergies
and ticked on allergic to sodium. Physician without reading the form gave the medicine which con-
tained sodium. Anie’s fever raised and started vomiting. Next day she went to other physician, and
he recognised that medicine contained sodium, as result he changed the medication. Here though the
physician was negligent, the damage caused to the patient was minimal. Any error which does not
cause permanent injury to the patient is called medical error. For medical malpractice the patient must
have caused permanent injury. To prove medical malpractice case four elements should be present.
First proper standard of care was not maintained. Secondly there must be a breach causing injury.
Causation is the third element, were the patient has suffered emotional or physical injury and finally

1
SREERAM MANOJ KUMAR, Doctors and Teachers are the Second God!!!!! Speakingtree.in (2013),
http://www.speakingtree.in/blog/doctors-and-teachers-are-the-second-god (last visited Jul 7, 2017).
2
MARYJO LUDWIG & WYLIE BURKE, Physician-Patient Relationship Physician-Patient Relationship: Ethical
Topic in Medicine, http://depts.washington.edu/bioethx/topics/physpt.html (last visited Jul 7, 2017).
3
The paper explicitly talks about medical negligence. It does not talk about medical error.

4
damages; what is the jury and what harm is caused.4 To get better understanding, in the case of Robbie
Powell, a ten year school going boy Robert Powell lost his life in hospital in 1990. The father of the
deceased within months suspected that something was wrong with the diagnosis. He fought 15 years
to find the truth. He was right and gave justice to his son’s death. There were multiple errors which
led to failure in treatment. The Adrenocorticotropic hormone (ACTH) test which could have con-
firmed the diagnosis was not done and the family was not informed about the suspicion of life thereat
until the child died.5 So in this case all the four elements which could prove the medical negligence
on the part of healthcare providers was present. above all this case was solved through the process of
litigation. When a case is solved through litigation, it can take end number of years, there are cases
which took three decades to come to a solution, which was beneficial to neither party. This paper
discuses various options through which medical cases can be resolved quickly and economically.
According to the survey conducted by the American Medical Association (JAMA), medical negli-
gence is the third leading cause of death in the United States after cancer and heart disease.6 When a
patient visit the doctor or emergency room of a hospital, the patient is entitled to receive certain
standard of care. Unfortunately, the standard of care differ from hospital to hospital. In utmost cases,
the hands that were assumed to be helping the patient, becomes the cause of their death.7 When such
incidents happen, patient’s file a claim against the doctor.
Just like other industries, Disputes in health care are extremely common and disputes arising are of
differing interests.8 No other area of litigation has been the subject matter as much interest in amelio-
rating medical malpractice. A discrete element of this interest has centred on efforts to alter the pro-
cess by which medical malpractice cases are being handled. Since the mid-1970’s, nearly every state
has deliberately made an attempt to change the ‘tort reform’ intending to change the manner in which
malpractice suits are being handled.9

4
ZACHARY MATZO, Elements to Prove in Medical Negligence Cases MedicalMalpractice.com, http://www.medi-
calmalpractice.com/resources/medical-malpractice/medical-negligence-lawsuits/4-elements-prove-medical-negligence-
(last visited Jul 7, 2017).
5
LENINNIGHTINGALE, The Case of Robbie Powell NURSE BLOG INTERNATIONAL (2014), https://nursebloginter-
national.wordpress.com/2014/10/06/the-case-of-robbie-powell/ (last visited Jul 7, 2017).
6
LEARN VEST, 10 Things You Want To Know About Medical Malpractice Forbes (2013),
https://www.forbes.com/sites/learnvest/2013/05/16/10-things-you-want-to-know-about-medical-malprac-
tice/#3de306a9416b (last visited Jun 29, 2017).
7
On behalf of ROSEN LOUIK & PERRY, 13 Disturbing Cases of Medical Malpractice | Pittsburgh News Rosen
Louik & Perry, P.C. (2011), http://www.caringlawyers.com/blog/2011/02/13-disturbing-cases-of-medical-malprac-
tice.shtml (last visited Jul 1, 2017).
8
SANDY S. SANBAR et al., Legal Medicine Google Books (2007),
https://books.google.co.in/books?id=8gajBQAAQBAJ&pg=PA309&dq=why%2Bchoose%2Balternative%2Bdis-
pute%2Bresolution%2Bin%2Bhealthcare&hl=en&sa=X&ved=0ahUKEwjTnKmwv6nSAh-
WMK48KHX7GBwgQ6AEIIDAB#v=onepage&q=why%20choose%20alternative%20dispute%20resolu-
tion%20in%20healthcare&f=false (last visited Apr 2, 2017).
9
For discussions of malpractice reform efforts including descriptions of procedural changes, see U.S. Gem. Accr. OFF.,
MEDICAL MALPRACTICE: A FRAMEWORK FOR ACTION (1987) [hereinafter FRAMEWORK FOR ACTION];

5
Before going further, it is very important to understand what amounts to medical negligence. For
medical malpractice case, it is necessary that the provider must have made a mistake and the mistake
must make caused serious harm to the patient. Common errors include: (1) Wrong diagnosis; failure
to make the right diagnosis or making right diagnosis too late, (2) Surgical errors; sometimes medical
instruments are left inside the body or surgery is performed on wrong part of the body, (3) Prescription
mistake; at times wrong amount or wrong medicine is prescribed, (4) Unsafe condition; on some
occasions, the wounds are not totally cleared and providers fail to check the condition, due to which,
when travelling, the patient may get affected by serious infection, (5) Failure to monitor patient; if
the mother and the child are not monitored properly during the delivery due to which C-section was
not performed immediately and caused harm to mother or child or both, in all such circumstances are
considered as medical malpractice. For example: A patient was suffering from abdominal pain, so he
was immediately taken to the emergency room. The emergency doctor failed to diagnose appendicitis
and the patient was send home. Several hours later, the patient was not able to bare the pain and died
of shock. Here the doctor failed to recognize the symptoms of appendicitis, which caused the death
of the patient. So, all the four elements to prove medical malpractice are present. To prove medical
negligence on part of the provider, it is requisite to prove the mistake and serious harm caused to the
patient.10
Patient’s safety and prevention of medical faults is the mutual aim sought by all in healthcare- pa-
tients, providers and legal practitioner. But the agreement come’s an end when there is11 an error or
system failure12 or bad outcomes, and the disputes over “how” and “why” arises. Earlier disputes
were sought by litigation. To avoid the damaging effects of legal actions, Doctors (physicians) may
not disclose the information to patient which might have adverse event. Patients fill malpractice claim
against the doctors in order to extract information which might explain their undesired outcomes.13
Litigation is much time consuming, pain & distress and costly.
The theory of Alternative Dispute Resolution is an initiative to supplement or alter the traditional
ligation. It includes panoply of mechanisms which are designed to improve communication between

PAUL C. WEILER, MEDICAL MALPRACTICE ON TRIAL (1991); Glen 0. Robinson, The Medical Malpractice Cri-
sis of the 1970's: A Retrospective,49 LAW & CONTEMP. PROBS., Spring 1986, at 5; Walter J. Wadlington, Legal
Responses to Patient Injury: A Future Agenda for Research and Reform, 54 LAW & CONMrEP. PROBS., Spring
1991, at 199.
10
DENNIS ABRAMS, Examples of Medical Negligence AllLaw.com, http://www.alllaw.com/articles/nolo/medical-
malpractice/examples-negligence.html (last visited Jun 27, 2017).
11
GARY A. BALCERZAK & KATHRYN K. LEONHARDT, Alternative Dispute Resolution in Healthcare Alterna-
tive Dispute Resolution in Healthcare (2008), http://www.psqh.com/julaug08/resolution.html (last visited Apr 2, 2017).
12
CECILIA ONG , Medical mediation: Bringing everyone to the table The Bulletin (2016), http://bulle-
tin.facs.org/2013/03/medical-mediation/ (last visited Apr 4, 2017).
13
GARY A. BALCERZAK & KATHRYN K. LEONHARDT, Alternative Dispute Resolution in Healthcare: A Pre-
scription for Increasing Disclosure and Improving Patient Safety Psqh.com (2008), http://www.psqh.com/julaug08/res-
olution.html (last visited Apr 2, 2017).

6
the parties and reach to the solution of the disputes outside the courtroom, and the techniques may be
implemented before, during or after litigation.
There are several categories in which a malpractice dispute can be resolved- Arbitration, Mediation,
Negotiation, and Hybrid Methods. The degree of privacy and the level of independence may vary.
Moreover the decisions may also differ through various methods of Alternative Dispute Resolution.14
Through this paper the author will be discussing how Alternative Dispute Resolution in the field of
healthcare is used in various countries and why Alternative Dispute Resolution in healthcare can be
useful in India.

Alternative Dispute Resolution as an substitute to Litigation

To recognize the effect of Alternative Dispute Resolution on the health care system, it is very im-
portant to understand the alternative to dispute resolution, Litigation, must be scrutinized. Precisely,
in health care matters, the judgment and their consequences must be understood. Some of the negative
effects of litigation process comprises:15 (1) “the inability of tort litigation to deter physician negli-
gence;” (2) “the detrimental effect on the doctor-patient relationship;” (3) “the high emotional and

14
Supra 12.
15
SHEEA SYBBLIS, Mediation in the Health Care System: Creative Problem Solving, 6 Pepp. Disp. Resol. L.J.Iss 3
(2006), http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1120&context=drlj (last visited June 26,
2017)

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financial costs to the litigants;” and (4) the procedurally inefficient, cumbersome, and time-consum-
ing process of litigation.”16 Moreover, the present system is lacking in giving proper compensation
to the injured patient and urging for quality improvement.
The tort system does not encourage the payers who have actually suffered injury from medical neg-
ligence to bring their case to the court. However, litigation process, does not give sufficient compen-
sation to the injured person. Litigation under compensates the patient with minor injuries and gives
over compensation to patients with major injuries, so no proper remedies are available for the payers
suffering from medical negligence. Furthermore, it does not encourage sufferers to file claim against
the providers.
Additionally, this process continues for years but, the root cause of the dispute is not solved. Gener-
ally, the main reason behind the disputes is trust issue and miscommunication between the health care
providers and patients, which can further lead to recurring disputes and new malpractice claim.
The process can be emotional as well as stressful, which damages the parties. This affects the most
important relationship of doctor and patient. Due to its negative effect, instead of building relationship
it tends to deteriorate.
On the other hand, Alternative Dispute Resolution such as Arbitration and Mediation has been one
of the most considerable processes. When a provider wants complain to be taken seriously, litigation
is not the appropriate way to resolve the dispute. For those disputes were misunderstandings and hurt
feeling are concerned, a less costly and time consuming process i.e. mediation process will be often
appropriate. In most of the cases, payers do not really want money from the provider instead, they
want an explanation about their anxieties or an apology.17 It also gives an opportunity to payer and
providers to discuss on all issues, including non-legal issues.18 The process is more private and con-
fidential as compared to litigation.19 When a payer’s health and safety are at risk, time is of great
importance. So at times, delay can adversely affect the outcome, and barriers to care like delay, cost,
complexity and formality can be avoided. Courts can be an effective means in rare circumstances.20
It gives an opportunity for thoughtful resolution of emotional and highly demanded disputes sur-

16
Ibid 15
17
METZLOFF B. THOMAS, Alternative Dsipute Resolution Strategies in Medical Malpractice, Alaska Law Review.,
Vol.92, 429 https://kb.osu.edu/dspace/bitstream/handle/1811/79700/OSJDR_V10N1_023.pdf?sequence=1
18
MCMULLEN ANDREW, Mediation and Medical Malpractice Dsiputes: Potential Obstacles in the Traditional
Lawyer’s Perspective., Journal of Dispute Resolution, Vol. 1990, No. 2., http://scholarship.law.missouri.edu/cgi/view-
content.cgi?article=1197&context=jdr
19
THORPE WAYNE, JAMS, Effective Use of Mediation and Arbitration in Health Care Disputes., Bloomberg Law
Reports. https://www.jamsadr.com/files/uploads/documents/articles/thorpe-healthcare-disputes-bloomberg-2011.pdf
20
MATHEWS ROD, The CPA in Mediation and Arbitration, The CPA Journal, December 2003. http://archives.cpa-
journal.com/2003/1203/dept/d124803.htm

8
rounding medical errors, end of life and patient’s safety. Alternative Dispute Resolution allows utili-
zation of dispute resolution professional, with applicable expertise to look into the matter when
needed.21
One of the most disturbing aspects of alternative dispute resolution from the consumer point of view
is the issue of privacy that makes it so desirable to the providers. For example, very less publicity of
malpractice claim is received so the providers are less investigated by the state medical council,
22
which means the providers are less likely to lose their patients. So even if the provider is not com-
petent, he will be secured. Besides only when more payers are harmed, the state medical council will
hear the provider’s behaviour.
Another problem of privacy is that, ADR does not develop the law, or the precedent on which payers
can rely. The result of medical malpractice cases are based on current law and not on contraction,
expansion and extension of principles of law. Precedent needs to be changed or set properly in some
cases, where health care claims are rejected litigation is appropriate.23
Against this drop back, there are many positive points to alternative dispute resolution which cannot
be ignored. As discussed earlier, other than litigation, alternative techniques which can be used to
resolve the dispute in medical malpractice are as follow:

Negotiation

Out of all the forms of alternative dispute resolution, negotiation is the most informal technique. This
technique is also proclaimed as early disclosure and apology program. It is a separate process at the
same time it is one which is imbedded in other techniques. In this process, whether or not there is
cognizance of any conflict, payer and provider come to an agreement. There are no official or standard
rules about how to conduct negotiation.
In a negotiation process, there are no rules about where a negotiation should take place, how long
negotiation should continue or which party should speak first. The parties have full control over the
process as well as the outcome. Parties are responsible for whatever the outcome is.24

Mediation

21
Supra 19
22
ALICIA ROBERTS, Alternative Resolution Takes Less Money, Time; So Arbitrate or Negotiate - JustDon'tLitigate,
5 Managed Care L. Outlook 1, 4 (Jan. 1993).
23
Supra 17.
24
Alternative Dispute Resolution in Health Care, ANA Continuing Education | Workplace Advocacy | Alternative Dis-
pute Resolution in Health Care (1970), http://ana.nursingworld.org/mods/archive/mod190/ceadrful.htm (last visited Jul
2, 2017).

9
One of the most overused yet misinterpreted terms in the ADR is Mediation. It is an informal process.
In medical malpractice cases mediation can be effective,25 because the doctors and their institutions
are worried about their professional image and reputation, same way patients don't want social stigma
attached to their disease or suffering.26 Generally the parties themselves meet with a natural third
party or a mediator who is an impartial and unbiased in resolving the dispute. Mediator has no au-
thority to impose a solution on the parties nor is the decision of mediator binding on the parties.27
And the parties can end the negotiation at any point of time. This can be a benefit to the defendant
physician.28 In 90% of the cases if the physician feels that they have been wrongfully sued, then they
can protect their rights by going to the trial.29 Mediation protects the right and is comparatively in-
formal. Normally parties don't hire Attorney, so the process becomes simple and relatively less ex-
pensive. The informal atmosphere gives flexibility in awarding remedies. For example, when litiga-
tion leads the way to monetary awards, mediation leads to many solutions like sympathy from the
doctors or execution of future safety rules, which the patients find it more fulfilling. Mediation pro-
cess gives higher self-satisfaction rate among the plaintiff and defendants.30 To bridge the legal gap
in relation to medico-legal dispute resolution, mediation is a successful mechanism.31

Arbitration

Arbitration starts when parties mutual decide to use an arbitrator, generally a discretely retained in-
dividual is selected who gives decision in place of judge. Thus arbitration can be both (a) a voluntary
process, here the parties in some point of time have agreed to its use, and (b) a binding process,
dispute will be conclusively resolved. Furthermore, the parties have substantial power to determine
for themselves the specific details of the arbitration procedure.32 Parties can agree to do arbitration at

25
JOHN J. FRASER & THE COMMITTEE ON MEDICAL LIABILITY, Technical Report: Alternative Dispute Reso-
lution in Medical Malpractice Pediatrics (2001), http://pediatrics.aappublications.org/content/107/3/602 (last visited
Apr 2, 2017).
26
DANNY WH LEE & PAUL BS LAI, The practice of mediation to resolve clinical, bioethical, and medical malprac-
tice disputes | HKMJ The practice of mediation to resolve clinical, bioethical, and medical malpractice disputes |
HKMJ (2015), http://www.hkmj.org/abstracts/v21n6/560.htm (last visited Apr 5, 2017).
27
Supra 17.
28
DAVID H. SOHN & B. SONNY BAL, Medical Malpractice Reform: The Role of Alternative Dispute Resolution
Clinical Orthopaedics and Related Research (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3314770/ (last
visited Apr 4, 2017).
29
THOMAS E. GREER, Alternative dispute resolution in medical liability cases Alternative dispute resolution in med-
ical liability cases (2009), http://www.aaos.org/AAOSNow/2009/Jul/managing/managing7/?ssopc=1 (last visited Apr
4, 2017).
30
Supra 28.
31
Supra 26.
32
MELTZLOFF THOMAS, Alternative Dispute Resolution Strategies In Medical Malpractice., Alaska Law Review,
Vol. 92, 429. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1056&context=faculty_scholarship, proce-
dural variables relating to the conduct of an arbitration hearing include, among others: (1) the length of the arbitration

10
any point of time. Thus, the litigants can voluntarily agree to submit the claim to binding arbitration
even after the suit is filed.33 For example, Dr. Gabey and Patient Alina, decided that they would solve
their problem through the process of mediation and if they are unable to come to a solution they
would submit their problem to arbitration. The parties failed to mediate. Therefore, they put forward
their claim to arbitration. Then they followed the process of finding an arbitrator and gave him or her
guidelines they wanted the arbitrator to follow. If the parties have no specific demand about how the
process should carried on, the arbitrator will offer rules and guidelines he or she has used in the past.34
Arbitration does not play a significant role in solving medical malpractice cases, however its potential
application has been widely advocated.35 Some of the reason why arbitration has not been more pre-
vailing despite efforts is being made. (1) Many of the statutory provisions are apparently designed as
consumer protection measure which in fact serves to limit the use of arbitration agreements. (2) At-
torneys from both the side are generally opposed to routine use of arbitration. The judge or jury is
often viewed by both parties attorneys as a relevant “dispute resolver” in many malpractice cases,
specially the cases where there is critical factual dispute. (3) Some attorney believes that the arbitra-
tors are likely to make compromise decisions which do not give full justice to their client’s interest.
Especially when physicians possess a strong interest in justifying their conduct. (4) Malpractice in-
surer have lack of interest in arbitration, they are concerned as to if the advance process for declaring
malpractice claims were established, the number of claims would be high.

Mediation-Arbitration (Hybrid Process)

Mediation-Arbitration is the combine process of mediation and arbitration, where the same person
acts as a mediator as well as arbitrator. If the parties are unable to solve the dispute through mediation,
the med-arbiter is given the authority to make the final decision.36 The mediator has the authority to
allow the payer and provider to decide whether they want to talk collectively or caucus.37 Usually the
mediator is also the arbitrator. The payer fear the lack of fairness once they have told the restricted
story to the mediator-arbitrator, for which they have concern that the parties will not be open during

hearing; (2) the number of arbitrators; (3) the required qualification of arbitrators; (4) the process for selecting arbitra-
tors; (5) the amount of discovery permitted to be conducted.
33
Ibid 32.
34
Alternative Dispute Resolution in Health Care, ANA Continuing Education | Workplace Advocacy | Alternative Dis-
pute Resolution in Health Care (1970), http://ana.nursingworld.org/mods/archive/mod190/ceadrful.htm (last visited Jul
2, 2017).
35
Supra 32
36
Arnold Swartz and Associates, Mediation-Arbitration, http://www.swartzmediation.com/pg8.cfm (last visited Jul 2,
2017).
37
Mediation-Arbitration MED-ARB, MEDIATION-ARBITRATION CDRS, http://www.constructiondisputes-
cdrs.com/about%20MEDIATION-ARBITRATION.htm (last visited Jul 2, 2017).

11
the mediation. The solution to this is that the arbitrator can switch the role to co-mediator and exclude
from individual caucus, with parties keeping the right to confidentiality from the potential arbitrator
for a specified portion of the discussion.38
At times, arbitration take longer time then expected to come to a solution, in such cases it is beneficial
to both the parties to carry out the claim through med-arbiter process.

Current legal and political developments favouring Alternative dispute resolution


Morrison v. Therm-O-rite Products Corp.,39

The present case was heard by Pennsylvania State. The payers took help of arbitration panel, and
under the State Malpractice Act, arbitrators were given Original Exclusive Jurisdiction, to hear and
decide any case brought before them by the payer or their representatives for any kind of loss or
damage caused to them from the medical services.
Here, the decedent (Charles O. Morrison) had to undergo a surgery. The provider performed the sur-
gery with the help of defendant’s equipment “Hypo-Hyper Thermia”. After using this equipment, the
patient received third degree burns over considerable areas of the body and as a result of which the
patient died. The widow filed for multiple actions like breach of warranties, strict liability, negligence
and misrepresentation under Pennsylvania’s wrongful Death and Survival Statutes against the Therm-
O-Rite Products Corporations (defendant). Moreover, before filing the suit, the plaintiff issued a no-
tice of complaint against the medical group which includes a physician, two nurses and a Medical
Centre for medical malpractice.
The Defendant (Therm-O-Rite company) had filled a motion to dismiss the claim, on the grounds
that the plaintiff was unsuccessful to state a claim upon which reassurance can be granted and added
that according to Pennsylvania Health Care Services Malpractice Act, the court lacks jurisdiction to
hear the case, and so the motion to dismiss was granted under the law of Pennsylvania.40

38
Dr. PETER LOKE, Meidtaion and Arbitration in Healthcare Dispute Resolution, https://www.sma.org.sg/Up-
loadedImg/files/Publications%20-%20SMA%20News/4605/Professionalism.pdf (last visited Jul 4, 2017)
39 468 F. Supp. 1295 (1979)
40
Morrison v. Therm-O-Rite Products Corp., 468 F. Supp. 1295 (M.D. Pa. 1979), , http://law.justia.com/cases/fed-
eral/district-courts/FSupp/468/1295/1806377/ (last visited Jun 23, 2017).

12
Webb v. Priest et al.41

A man with severe abdominal pain was examined in the hospital’s emergency department, and unitary
infection was diagnosed, thereafter he was discharged. Later, after five days, he was checked by an-
other general surgeon, who was practicing at different hospital. According to the surgeon, a lump was
diagnosed at an undetermined origin in the abdomen and advised him to get hospitalized, however
the patient refused and subsequently the same day, the patient’s appendiceal abscess ruptured, and an
emergency surgery was performed at third hospital. While performing the surgery, the surgeon un-
fortunately patient’s colon was perforated. As a result, additional surgery was required.
Numerous physicians and hospitals were involved in plaintiff’s proceeding, which involved original
emergency department, physician for failure to diagnose the abscess.
The court allowed Plaintiff’s attorney to comment during opening statements and arguments but, was
refused to comment on the results of pretrial mediation. During that period, Florida Law provided
that results of such mediation could be brought to the court’s attention only during such times, and
court had the discretion to limit the comments relating to mediation results.42

Camp v. EMSA Ltd.43

In this case, a 79 Year old woman was admitted in the emergency department of camp hospital, how
was suffering from “mid-sternal chest pain” that spread to her shoulder and neck. She informed the
nurse that her symptoms like vomiting, severe headache, sweating and diarrhoea started earlier that
day after she sneezed in the garden. The emergency physician was concerned that she might be having
heart attack. In order to rule out that possibility, the physician lined-up certain tests to conduct.
Neurological test were negative. It did not show any neck rigidity, deteriorating headache, loss of
functions in the extremities, or other symptoms which could prove a neurological problem. Then the
physician asked her to conduct X-Ray for sinuses, the X-Ray was positive and treated her for sinusitis.
Later, the woman was discharged. Following day, the woman expired. Expert’s testimony was con-
flicting over the cause of her death.44
A suit was filed against the doctor medical malpractice. The jury gave the decision in favor emer-
gency physician. The medical care given by the physician met the standard of care.45

41 413 So. 2d 43 (Ct. App. Fla., 1982).


42
Alternative dispute resolution: A remedy for malpractice disputes?, AHC Media - Continuing Medical Education
Publishing (2000), https://www.ahcmedia.com/articles/46261-alternative-dispute-resolution-a-remedy-for-malpractice-
disputes (last visited Apr 11, 2017).
43 518 S.E. 2d 482 (Ga. Ct. App., 1999).
44
Ibid 43
45
AMY E. ELLIOTT, Arbitration & Managed Care: Will Consumers Suffer if the Two Are Combined? 10 Ohio St. J.
on Disp. Resol. 417 (1995).

13
This case took 5 years, between the event which led to malpractice claim and the final decision of the
court. Once the process of litigation starts, approximately it takes 35 months to solve the case but,
this case took 5 long years to pass a decision.46 If the parties would have tried to resolve this problem
through alternative dispute resolution method, it would have solved quickly, and would have been
cost effective.

Obstacles

The provider has to report medical malpractice case to the National Practitioner Data Bank (NPDB),
including the payment derived from ADR process.47The information in the data bank is limited and
is not available to general public48, which is considered boon to the providers, but obstruction to the
payers. Payers do not get fair opportunity in selecting their physician.
It was deliberately made to prevent fake providers from simply relocating to a new hospital or new
state when adverse track records were accepted. Entries in NPDB are specific to the physician on
whose behalf the payment is made and it becomes permanent.49
The problem with the NPDB is that it urges the efficient settlement of non-negligence cases. Most of
medical malpractice cases filed does not contain negligence. Payers sue the providers as an outcome
of emotional reasons or out of unrealized expectations, in such cases it is inefficient to litigate for
both the parties. But, to arrive at a conclusion, defendants have nominal damaging consequences.
Physicians give explanations for the circumstances to avoid having their names entered in the NPDB,
by pursuing to take litigation, which tends to favour them.50
Another obstacle in use of ADR is distrust. Although ADR has seen a rapid growth in other fields but
it is lacking in the field of health care. In 1970s and 1980s, various forms of tort reforms were imple-
mented, including several that were compulsory and clumsy. The strength of ADR is that there are
several option which are best implemented flexibly rather than mandatory. For instance, Arbitration
is best when there is a real evidentiary point of disagreement, specially when a complex issue of
science is involved. This is because an expertise of that particular field is selected. But in a lawsuit,

46
American Arbitration Association Health Care Claims Settlement Procedures, Mediation Rules, Rule 3, effective
July 1, 1992, Web site: www.adr.org.
47
Supra 25.
48
ANTIQUE NGUYEN, PreCheck Blog The National Practitioner Data Bank: What Healthcare
Compliance Officers Need to Know | PreCheck (2016), https://www.precheck.com/blog/national-
practitioner-data-bank-what-healthcare-compliance-officers-need-know (last visited Jul 7, 2017).
49
Supra 30.
50
Supra 42.

14
when patient’s need is information and apology, the best choice is informal and non-binding process
of mediation.51

Comparison of ADR: Ireland, United Kingdom and Untied States

Ireland

Ireland is facing an ever growing rapid increase of problems and changes in the field of healthcare,
which has direct impact on the experiences of patients and the interactions of those working in this
field.52 One of the main reasons for increasing problem is that the payer on whom the wrong has been
done, wants to take their claim to the court, so that they can get a huge amount of compensation,
moreover the apology and the experience of their difficulty they have faced should be known to the
world. Many claims get media coverage when the claim is taken to the court. But arbitration does not
get such public recognition.53
Another barrier in terms of experience of arbitrators is that the specialist nature of medical malprac-
tice is not sufficiently catered. Generally arbitrators with dual qualification (medical and legal) are
hard to find. For example, approximately there are 2300 members of the Irish Bar, out of which 5-10
barristers are dual qualified. Nevertheless it is difficult to accept that there are not much qualified
arbitrators to hear medical negligence cases. Such cases of medical malpractice are heard by Superior
Courts Judge. Around 60 Judges sit, out of which none of them holds a medical qualification, as far
as the author knows.54

United States of America

Advancement of ADR in American Healthcare System was started in late 1990’s. In July 1998, The
American Bar Association, The American Arbitration Association, The commission on Healthcare
Dispute Resolution and The American Medical Association got collaborated to form the commission
on Healthcare Dispute Resolution and produced the “Healthcare Due Process Protocol”, the goal was

51
DAUER EA. Alternatives to litigation for health care conflicts and claims: alternative dispute resolution in medi-
cine. Hematol Oncol Clin North Am. 2002;16:1415–1431. doi: 10.1016/S0889-8588(02)00069-2.
52
HUSSEY ARRAN, Irish Medical Professional Negligence Claims & ADR: Still Underused? (2016)
https://www.linkedin.com/pulse/irish-medical-professional-negligence-claims-adr-arran-dowling-hussey
53
Mediation: Healthcare ADR, CPD Seminars (2010), https://www.cpdseminars.ie/articles/mediation-healthcare-adr-
ireland/#_ftn29 (last visited Apr 11, 2017).
54
Supra 50.

15
to make the best use of ADR in resolving disputes healthcare environment. Patients, healthcare pro-
viders and managed healthcare organizations had begun to explore ADR as a method to resolve dis-
pute in an effective manner, as courts and administrative agencies became less accessible.55 In 1995,
Due to unforeseeable growth in jury awards and legal costs the field of medical malpractice cases in
Chicago, the Chicago’s Rush Medical Centre developed the “Rush Model”. It is probably the most
referenced example of Alternative Dispute Resolution.56 This model features mediation conferences,
mediation agreement and above all co-mediators, which includes a lawyer who would typically rep-
resent the plaintiff in a medical liability case and a lawyer who would defend those cases.
In the first 5 years of the program, 55 cases with spanning errors in diagnosis, medication and treat-
ment were mediated. More than 80% cases were solved within one year and in less than 3-4 hours of
starting mediation of the lawsuit being filed. Though the payouts were lower than expected, patients
were willing to accept the award since they were quickly mediated.57
A unique Alternative dispute resolution program was instituted by the department of Veterans Af-
fairs, which is known as “The Veterans Affairs Model”. The model was originally piloted by the
Veterans Affairs Medical Centre in 1987 at Lexington, Kentucky, after seeing rise in number of law-
suits and the range of awards.58 The program provided the full disclosure of the event of the event
which led to harm and expression of apology on behalf of the institution and the provider. The system
allows the payer and their family members to bring their lawyer and discuss the offer of compensation
early in the process. With the implementation of this program, the Veterans Affairs hospital became
the lowest payouts and between 1990-1996, the average settlement of claim in Lexington was ap-
proximately half then other institution. Moreover, the duration of cases declined from 2-4 years to 2-
4 months.59

United Kingdom

In United Kingdom the English Court in Burne v A60, ordered the parties in a medical malpractice
claim to enter into mediation with a view to end the “anxious and distressing case.” The mediation in
the above case lasted for one day to arrive at the resolution. In 1995, the National Health Service
(NHS) launched Medical Negligence Mediation Pilot Scheme in response to concern about increase

55
Supra 51
56
Supra 11
57
Supra 14
58
Supra 56
59
JOSEPH S. KASS & RACHEL V. ROSE, Medical Malpractice Reform—Historical Approaches, Alternative Mod-
els, and Communication and Resolution Programs, Mar 16 AMA Journal of Ethics (2016), http://journalofethics.ama-
assn.org/2016/03/pfor6-1603.html (last visited Jul 3, 2017).
60
[2006] ADR.L.R. 01/25

16
in number of negligence cases and to the criticisms about how they were managed. Several remedies
were given to the claimants such as apologies, new treatment plans, extensive explanation of medical
decisions etc. The NHS complaints procedure, as an extension to the Pilot Scheme, was planned to
provide patients with an explanation and apology if needed. But the procedure was not designed to
provide compensation for negligence claims, the patients can use the procedure only if there main
purpose is to get an explanation, or to obtain more information about what had actually happened, so
that they can decide what other actions might be appropriate.61 The Panel of Law firms have been
instructed by the National Health Service to consider the appropriateness of mediation and monitor
the outcome of every case. It was estimated that mediation would reduce the legal costs, fees and
compensation by 5%.
Medical Malpractice cases are often solved with the help of Alternative Dispute Resolution mecha-
nism in US and UK. Alternative Dispute Resolution has not yet penetrates in Ireland but it is con-
sistent with contemporary economic dysfunctions. The main goal of ADR is to get a mutually agree-
able resolution. It is used to secure the payer-provider relationship. The success of cases solved in US
and UK through the process of ADR can be the impetus for exploring the benefits of ADR in Irish
Health service.62

Conclusion

61
Pre-Action Protocol for the Resolution of Clinical Disputes, Civil Procedure Rules (2017), http://www.jus-
tice.gov.uk/civil/procrules_fin/contents/protocols/prot_rcd.htm (last visited Apr 11, 2017).
62
Supra 49

17
Litigation is traumatic, adversarial and harmful to the physician-patients relationship. Litigation stress
can be a burden on both the parties.63 Until the providers and payers openly do not discuss the factors
that lead to errors and adverse effect, the current safety crisis in healthcare will not be resolved. More
favourable environment needs to be encouraged for healthcare providers to recognize, analyses and
report errors without the threat of litigations and without compromising the patients legal rights.64
Alternative dispute Resolution has undoubted shown positive impact on Physician-Patient relation-
ships. It has improved the efficiency of resolving cases, it is time consuming, reducing the costs,
enhancing the confidentiality of proceedings and encourages improvements in patients safety.65
Despite these benefits Alternative Dispute Resolution process is not used in various countries. One
such country is India. ADR in the field of healthcare is not practiced in India.66 Nearly 3 crore cases
are pending in the courts.67 Litigation is not always an appropriate way of solving a dispute, it can
sometimes make the problem worse. Litigation cannot be used by all aggrieved consumers, because
it takes years to get compensation from the court and the awards generally do not correspond to
injuries, and so it is not worth taking the case to the court.68 There is need to change the manner in
which India chooses to address medical malpractice cases. The present legal system has too much
inequity. Systematic deficiency’s such as delayed and protracted litigation, heavy litigation costs and
dependency on Indian judicial system does not provide effective justice to both payer and providers.69
One of the best examples can be the recent judgment on medical negligence70 Kunal Saha vs State
of West Bengal & Ors,71 Three physicians were held responsible for the death of a woman in AMRI
hospital, Kolkata. Judgment was given after 15 years and a compensation of 11.4 1 crore was
awarded. If Alternative Dispute Resolution mechanism existed in India, this case would have not
continued for such a long time and the compensation amount could have been less as compared to
the compensation given by the court. This process would have benefited both the parties.
The government needs to act and invest in health care services before it is too late. If ADR in the field
of health care is brought in the Indian system, Payers and Providers will be benefited at large. ADR
has both advantages and disadvantages, but it will surely reduce the burden from the courts and help

63
Supra 40.
64
Supra 13.
65
Supra 58.
66
Supra 23.
67
AMRITA SINGH, 5 Reasons Why There Are Nearly 3 Crore Pending Cases In Indian Courts Youth Ki Awaaz
(2016), https://www.youthkiawaaz.com/2016/05/judiciary-pending-cases-india/ (last visited Apr 12, 2017).
68
Supra 66.
69
Supra 46.
70
S. CHANCRE MEGHANA, BADA MATH SURESH, Progress in Medicine: Compensation and medical negligence
in India: Does the system need a quick fix or an overhaul., (2016), Vol: 19, issue: 5, Pg 21-27, http://annalsofian.org/ar-
ticle.asp?issn=0972-2327;year=2016;volume=19;issue=5;spage=21;epage=27;aulast=Chandra;type=3
71
W.P. No. 15515 (W) of 2014
18
in giving speedy and better judgments since it is time consuming, confidentiality is maintained, cost
effective.

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