Tag Archives: malpractice

Legal Malpractice Considerations in Mediation

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Legal malpractice cases are often quite complex because they involve a case within another case.  Such claims often arise when the underlying case was not resolved in the manner that the client wanted, leading him or her to speculate on the possibility of improper action on the part of the attorney whom they hired.  In order to avoid some of the negative aspects associated with suing someone’s own lawyer, mediation can be used in place of litigation.

One of the complexities of a legal malpractice case is that the plaintiff has the burden of showing that he or she would have been successful with the underlying case had the lawyer not made the alleged mistake.  Since much of the law depends on a subjective analysis of the evidence, this can be a difficult burden to demonstrate.

Another complexity involved in legal malpractice cases is that an insurance carrier may be involved.  A carrier may be eager to settle the case if it believes that the cost to defend the case may be greater than the cost to resolve the case through mediation.  However, this also requires that the legal malpractice carrier send a representative who can provide settlement authority on behalf of the insurance company.

The stakes involved in legal malpractice cases are often high, including having the lawyer’s reputation on the line.  Additionally, the case may involve confidential communications.  As such, a malpractice case may involve sensitive information.  Mediation is a collaborative process that tries to move away from making inflammatory statements about each other that will simply provoke each other and instead focuses on resolving the matter in a peaceful manner through open dialogue.  If successful, the process often results in a faster and more affordable resolution than litigation provides.

What You Should Know about Professional Malpractice Mediation

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What You Should Know about Professional Malpractice Mediation

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Mediators are useful in a myriad of situations, one of those being in the area of professional malpractice.  When someone in a professional capacity fails to perform his or her job within the ethical guidelines prescribed, lawsuits can be likely.  One way of avoiding a lawsuit and having all parties reach a place of mutual satisfaction is through the use of a mediator.

A mediator can be instrumental in solving issues in medical malpractice such as:

  • Failure to pursue a patient’s full medical history
  • Ignoring possible reactions to drug interactions
  • Prescribing “wrong” doses of medication
  • Improper administration of treatment, or treatment without consent
  • Insufficient medical records of treatment
  • Not communicating with the patient
  • Fraud

In cases of legal malpractice, the mediator can solve problems relating to:

  • Dishonesty
  • Acting outside of “Good Faith”
  • Treating the client in an unfair way
  • Improper actions taken against the client or actions undertaken without their consent
    • Breach of Attorney-Client Privilege
    • Unethical behavior
    • Fraud

There are other professional situations that can constitute a breach of contract.  Anything that is a direct violation of the ethical standards of a professional practice can create a situation in which mediation can become necessary for solving disputes.

Using a mediator keeps things confidential and outside of a court.  The mediator acts as a neutral third party and facilitates, rather than directs or controls, the process.  In creating an environment for discussion of the grievances, a mediator is able to decide in a fair and unbiased way, what the best course of restitution would be.

Many people, particularly in a professional capacity, prefer to have a mediator settle their disputes.  It keeps things between the aggrieved parties and the person or persons with whom they are having a dispute.  Mediation is also less time consuming than court, as well as being more affordable.

New York City Study Finds Medical Malpractice Mediation to Be Highly Successful

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New York City Study Finds Medical Malpractice Mediation to Be Highly Successful

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An article published in Health Affairs entitled “Mediating Medical Malpractice Lawsuits Against Hospitals: New York City’s Pilot Project” discusses a feasibility study conducted with the New York City Health and Hospitals Corporation in which 29 lawsuits involving medical malpractice mediation were assessed.  The purpose of the study was to determine the plaintiff’s and defendant’s satisfaction level with medical malpractice mediation as an alternative for litigation in a medical malpractice lawsuit.  The results of the study suggest that everyone involved in the cases that were sampled found medical malpractice mediation to be an effective and useful form of alternative dispute resolution.

Authors Chris Stern Hyman and Clyde B. Schechter of Columbia Law School in New York City conducted the study and ascertained that satisfaction was high, even if a settlement was not reached in the process.  Among the sample cases, the average length of mediation was 2.34 hours.  Of the total number of sample cases, 13 were settled and the median settlement amount was $111,000.

One of the more interesting finds of this study is that attorneys from both sides of the dispute estimated that they spent approximately one-tenth of the time preparing for the case than it would have taken them to prepare for litigation.  Reducing attorney time and cost is one of the significant benefits to professional malpractice mediation, allowing disputants to not only achieve settlement quicker—but also at a much lower cost.  With court dockets that are often crowded, particularly in areas for which there are a high number of similar cases, medical malpractice mediation is often used as a cost-effective and time-saving alternative to litigation.

In a medical malpractice dispute, saving the image and reputation of a health care provider or facility is another high priority, making alternative dispute resolution methods like mediation a popular choice.  With absolute confidentiality and privacy, health care providers can use medical malpractice mediation to avoid the public eye that is always present in litigation.

Professional Malpractice Mediation Saves Time, Money—and Most Importantly, Relationships

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One of the major sources of rising costs in the medical field and related health care services is the high number of professional malpractice lawsuits that have become the status quo for many providers.  These numbers, and the costs that are associated with them, have created a situation in which professional malpractice mediation is one of the most sought-after sources of alternative dispute resolution.  Professional malpractice mediation for healthcare disputes is not only a cost-effective and time-saving alternative to costly and lengthy lawsuits—it is also completely confidential, making it an attractive alternative to the public nature of litigation for many health care facilities and health care providers.

Professional malpractice mediation is not just limited to health care and related fields, however.  Attorneys and educators can also benefit from professional malpractice mediation, as these fields have likewise seen a rise in lawsuits and disputes over issues such as negligence, confidentiality or services rendered.  Although most cases involving professional malpractice mediation fall within the realm of health and health-related services, other fields have benefitted from mediation and continue to show success in resolving disputes that are taken through this type of alternative resolution process.

If you have been the victim of professional malpractice and feel that the cost and time involved to pursue a lawsuit does not make pursuing justice reasonable, consider professional malpractice mediation as an alternative.  Many people have been absolutely satisfied with the outcome of the mediation process and feel that mediation is a much preferable alternative to litigation or arbitration for professional malpractice claims.  In many cases, mediation allows clients to continue to receive services from a professional, if so desired, as the relationship is better maintained than if a lawsuit had been pursued.  This fact—that mediation can successfully save client/professional relationships—speaks volumes as to its effectiveness and status as a preferred course of action over litigation.

Malpractice Mediation for Easier Settlements

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Malpractice Mediation for Easier Settlements
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According to a report compiled from the National Practitioner Data Bank, in 2012, over $3.6 billion dollars was paid out in medical malpractice claims.  Of these payouts, 93% were the result of a settlement rather than a judgment, which clearly shows the success rate of alternative dispute resolution practices such as professional malpractice mediation.

When a professional offers services—whether it be medical, legal or investment-related—the possibility always exists for something to go wrong.  After all, professionals are human and humans make mistakes from time to time—even the ones who are exceptional at their jobs.  In cases for which something goes wrong, most professionals are covered by an insurance policy for malpractice claims.  In fact, in today’s world, very few professionals practice their craft without one.

That’s why professional malpractice mediation is a great way to reach a settlement on a malpractice claim.  With litigation comes not only added expense, but also loss of time and (potentially) reputation in the process.  However, with professional malpractice mediation, both sides are able to openly communicate about the conflict with the assistance of a third party, neutral mediator.  This process of open communication facilitates a quicker settlement so that everyone can get back to their lives and put the incident behind them.

Many organizations encourage mediation as a way to resolve professional malpractice claims because it is a low-cost, low-profile option.  The best part is that if either party is not happy with the outcome of the mediation proceedings, they can then choose to litigate the claim.  While mediation ensures that the parties in conflict remain in control of the outcome of their own negotiations, it doesn’t always promise a resolution to the conflict.  However, in many cases involving professional malpractice, a mediator is able to bring the parties to a place of mutual agreement on settlement terms, making the process easier for everyone involved.