Medical Malpractice "Mess" and Mediation

I found this recent article, Mediation Could Help Remedy Medical Malpractice Mess, and the comments following the article to be largely misguided.

The article states/argues that mediation should be mandatory in our court system. Their reasoning for requiring mediation by law:

For one thing, plaintiffs may not even know mediation is an option. And lawyers, the main referrers for mediation, and aren’t necessarily big fans of it.

Um, plaintiffs aren’t aware mediation is an option? Seriously?

At least in Oklahoma, most personal injury and medical malpractice cases that are tried are actually brought before a mediator. The ones that go to trial are the ones that couldn’t get settled. According to a United States Justice Department study, about 97 percent of civil cases are settled or dismissed without a trial. How do you think they get settled?

Both sides have plenty of incentives to settle a case.  I think the main reason is uncertainty.  It’s certainly hard to predict if a jury is going to come back with a big or small verdict.  It’s stressful for the individual people (the clients) involved. It’s also expensive to try a case.  It can easily cost $40,000 to try a medical malpractice case.  It costs a lot of money to have doctors review medical files.  Those doctors, in turn, charge a lot to have their depositions taken and for their time to testify.

There are five comments on the article.  I’ll go ahead and mention them all:

A judge commented about recommending a similar approach.

In Oklahoma, we have often have judges order mediation unless it can be shown that it would not serve any purpose (so this is a non-issue).

The second commenter:

A doctor mentions an interesting blog post he wrote on why our medical system is superior to not having one.

Definitely.  A system that limits accountability is also worse – but that’s what a lot of people (actually companies) are advocating for.  Companies can save a lot of money if they are not held responsible for their actions.

The next comment:

How about this: Stop paying punative damages to the plaintif or their attorneys. If we stop paying these enormous awards to plaintifs and attorneys, much of the allure of whimsical lawsuits goes away, and with it most of the silly gold-digger lawsuits.

Guess what?  The vast majority of lawsuits have merit.  How often do you actually hear about jackpot justice?  We don’t even know what the McDonald’s coffee case settled for (out of court). Sure there was a big verdict – it wasn’t enforced.  What about the cases that have merit?  Should these be severely limited?

The next comment:

Mediation is very effective, so long as liability is clear.

Not really.  Insurance companies don’t care if liability is an issue.  It’s all about their bottom line. We tried a case a few months ago where the insurance company accepted liability.  The only thing the jury could consider (and hear) was the total damages for the injured party.  The defendant’s insurance company had no interest in going to mediation and insisted on offering barely anything for the medical bills (let alone anything for pain and suffering, lost income, and future pain and suffering). Settling for a particular dollar amount vs. trying mediation vs. going to trial is a straight business decision for insurance companies.

The next comment:

Mediation is a Very Good Thing. “Lawmakers” telling local communities that they no longer have a right to trial by jury of their peers violates human rights that have been around for almost 800 years. When the government tells the courts how they may or may not rule in disputes, we’ve sacrificed freedom on behalf of big business once again.

Definitely.  Big businesses like to forget about (or when profitable, avoid) the U.S. Constitution.

That’s enough ranting for one day.  I’ll leave the article’s title about the “malpractice mess” for another day.