March 26, 2013

Mediation is the Latest Buzz Word for So-called “Tort Reform”

by Levin & Perconti

Oregon Governor John Kitzhaber has signed a bill this month that provides for mediation between patients injured by medical mistakes and the medical providers responsible. Proponents of the legislation claim this measure is to protect patient rights by allowing for confidential and open discussion about the claim without the costs and delay of litigation. Some cite this cost as the patients’ fault by bringing “frivolous” claims.

Forbes magazine has recently reported the high cost of medical malpractice claims tare often baseless or frivolous have a severe impact on consumers. The high cost of insuring against such claims coupled with the exorbitant cost of defending results in a higher cost of medical care. What these reports fail to do is hold those responsible for wrongdoing. Patients ultimately pay the price for medical malpractice by paying higher premiums for substandard care. This substandard care is supposedly the result of doctors spending too much time with unresolved claims, up to one third of a doctor’s medical career. The time spent on claims is then equated to time taken away from other patients. Further, med mal claims are blamed for increasing insurance premiums, which are then passed on to consumers. This line of reasoning puts the blame on the wrong party-the injured patient. Even more egregious is then using the injured patient as a scapegoat to avoid consequences for their actions.

The legal system is the appropriate mechanism to obtain justice. By limiting access to justice, these so-called reformers make it easier for doctors, hospitals, and insurance providers to escape liability. Mediation may be a step in the right direction, but basing any legislation on the notion that med mal litigation costs need to be curbed only seek to advance the interests of those perpetrating the wrongs. Patients don’t need less access to justice they need more. While Oregon’s efforts can be applauded for attempting to provide injured patients with a quicker and more solution-oriented approach to med mal, it cannot disguise the fact that everyone is entitled to their day in court.

A collaborative approach whereby doctors, patients, lawyers, and insurance providers work together is likely too good to be true. The only way to protect patients from harm is to ensure that medical providers are held accountable. The effect of laws like Oregon’s is to lull injured patients into a false sense of security. An entire case is essentially laid out for the wrongdoers, who are then able to defend against it effortlessly. Patients may also be offered quick settlements that do nothing to fully compensate the injury and do even less to deter other providers from making the same error. The scariest thing about this legislation is that mediation happens outside the court system. It is not presided over by a court official and the outcome of a mediated case is confidential and sets no legal precedence.

Beware the quick fix, it often does more damage than good.

See Other Blogs:

More Bad Legislation to Limit Legal Rights of Patients

Setting the Record Straight on Illinois Med Mal Fee Law