To use the mediation process- a voluntary, private, and confidential negotiation between parties in dispute with the assistance of a third party neutral-in a healthcare setting to resolve medical disciplinary claims. The challenge is to properly address those matters, which, after a preliminary investigation by the licensing body, do not appear to be actionable but, none-the-less, involve patient’s complaints, concerns, and grievances. The concerns of the patient and the interests of the physician are identified, discussed, and put in balance to preserve the integrity of the profession and the relationship of the parties.
Mediation is a process that gives parties in dispute a forum to explore resolution of serious issues in a productive and pro-active manner, where control and outcome remain in the hands of the parties. It brings people together, with the help of the neutral, to build understanding and preserve relationships and provides an analysis and exploration of all parties’ interests.
Disagreements in this setting can be resolved when the aggrieved party receives an explanation of the medical event, understands whether or not the problem was iatrogenic, is informed of any risk management procedures, receives an acknowledgment or apology without admission of fault, and has an empathetic listener.
It is no surprise that rude doctors get sued more often.1 Conversely, physicians who listen, show concern, and acknowledge the other person’s feelings can help create rapport and a trusting relationship with patients and family. To listen is to pay attention, take an interest, care about, take to heart, validate, acknowledge, be moved, and appreciate the person. It is especially hurtful not to be listened to in those relationships we count on for understanding. The need to be heard is one of the most powerful motive forces in human nature. Listening is so basic that we take it for granted. Unfortunately, most of us think of ourselves as better listeners than we really are.2
Acknowledging a patient’s position or feelings should not be viewed as an admission of fault or liability. It is merely a step in the process of understanding and explanation, a swinging door through which much misunderstanding and misinformation also travels. A mediation approach to conflict in this medical context is interest-based, in that rights, duties, and liability do not play as dominant a role as feelings and interests. In the rights-based process of litigation, parties are encouraged to disagree on facts and outcomes to better posture their legal position. In a mediated approach, positions are converted to interests in a problem solving process used to reach an integrated solution rather than distributing rewards in a win/lose manner. All parties’ interests must be identified and addressed for agreement or understanding to be reached, and they become cooperative problem-solvers rather then opponents.
The challenge is to identify those interests that lie in the context of the complaint or grievance in such a way that the patient is recognized and empowered to resolve the matter. The underlying or driving force behind the claim will remain unidentified or unrecognized until the person is at liberty to share and express them. That liberation requires the presence of a third party neutral, the mediator, to encourage full understanding through interactive listening. Few aspects of human experience are as powerful as the yearning to be understood. A mediator’s demonstrated empathy, which is an understanding of what the patient is trying to say, builds a bond of understanding transferred to and linking the physician to the patient, confirming that the patient’s feelings are recognizable and legitimate. When deeply felt but unexpressed feelings take shape in the words the parties share and come back clarified, the result is a reassuring sense of being understood and a grateful feeling of humanness with the one who understands. The mediator’s role is to direct the focus from stated positions and explore what the parties are really interested in and locate common solutions. From the perspective of the parties it is the difference between listening to respond and listening to understand.
Mediation has a long and successful history for patient grievances at the Royal College of Physicians and Surgeons of Ontario, Canada. Mediation is also entrenched and accepted as a vital form of conflict resolution within the United States. In 1998 the Kentucky Legislature enacted a statute for the purpose of announcing that it is the public policy of the Commonwealth to encourage resolution of disputes through mediation (KRS 454.011). Every state has laws encouraging or requiring mediation of disputes, none have been repealed, and more uses for mediation are anticipated.
When a complaint is received by the Medical Licensure Board, an administrative, initial inquiry should be conducted to determine whether the claim has validity. If the complaint falls outside the purview of disciplinary action, the physician should be so advised by letter with a copy to the complainant. This letter should advise the parties of the availability of mediation as a non-binding, confidential, and private process to further review the matter. When the patient and physician both agree to participate in a face-to-face dialogue, the claim should be submitted to mediation at a mutually convenient time and place.
The mediation process, typically two to four hours in length, should be conducted by two competent mediators, one a non-health care individual and the other a physician or related health care knowledgeable person. This approach of co-mediation is important for the parties to feel comfortable with a sense of assurance that each has someone in the mediation who understands their point of view. Even though mediators do not make decisions or advocate for a particular individual or outcome, parties frequently identify the mediator as an authority figure. When parties are willing to participate in good faith in an earnest attempt to listen to understand, mediation has about an 85% success rate. No matter what the outcome, success should be calculated in terms of appreciating options and the possibility of moving forward with a better understanding of each other’s point of view. It must be presumed the physician’s interest in participating in this program might be to educate the patient and/or representative about the treatment or procedures complained of and to have their acknowledgment that the matter does not rise to the level of license review or malpractice, in accordance with the initial administrative review of the claim. It might be presumed the patient is angry, frustrated, confused, or otherwise emotionally bound to the claim and in search of answers. Mediation is the perfect place to conduct this dialogue, not debate, since the process will not result in a fact finding or right-wrong, win-lose outcome.
The mediators will explain that,”mediation is the way for the two of you to talk together about why we are here today, so that you can both come to your own conclusions about how to handle this situation. You may decide to reach a settlement, or you may not, that is your choice. Other results are possible and may be equally satisfying, such as reaching a better understanding of each other, of your situation, and of your options. Mediation is voluntary, which means that either of you may decide at any time that you do not wish to go further. It is also confidential, which means that we won’t talk to anyone about what has been said, we won’t file any reports, and we won’t voluntarily testify at any hearing. While we are together you will have opportunities to talk and listen to each other and to have private conversations with us, if that would be helpful.”
LET THE SELLER BEWARE
The old adage caveat emptor means let the buyer beware and placed the consumer on notice to the risk of dealing with a provider and the related legal result of so sorry, too bad, but no remedy because you should have known or predicted the result. The legal pendulum has swung to a position today where the seller is on notice to be aware of unexpected or unanticipated results. It is an understatement to say we are a litigious society, and it is an overstatement to say plaintiffs are motivated by money. Our culture craves instant gratification, and we think we have a quick reference and knowledge base in the Internet, media commercials, or direct mail solicitations, and drug companies are marketing directly to the consumer. It is when we do not have answers to suspicions, response to assumptions, or adequate scientific insight to speculation that the consumer will challenge the provider regarding unfulfilled expectations. With the rapidly changing delivery of health services and related costs, consumers, who will be spending an increasing percentage of their own personal income on health care, will be more adversarial, fickle, and decidedly impatient.
From a distance, the adequate 95% success rate for medical procedures is laudable, however, in the rush and complexity of medical care, communication is often compromised. A primary purpose of communication is to influence the attitudes and behaviors of those we address. It is not the small percentage of unsuccessful medical intervention outcomes the physician should be wary of, but the patient who expected something else or cannot understand the medical result or feels the physician has deceived or somehow showed disrespect that will drive the consumer to search for remedy. The disillusioned patient does not require an attorney to file an administrative claim with the licensesure body or employer of a physician. It is prudent that any inquiry be addressed in some fashion, and that requires time and energy.
Mediation can conserve time and energy in its design to identify the interests and needs of the parties. Interrogatories and depositions cannot identify underlying needs and interests, because there is a presumption that money is the underlying motivation and the adversarial process must produce a winner and a loser based on the rule of law. What value does the rule of law have to a person who seeks merely an explanation and apology, when the rights based approach to conflict cannot easily offer that remedy? As the practice and profession of medicine changes, so too must the paradigm for resolving disputes. Mediation, although informal is often viewed as a person’s “day in court,” such that the search for justice can finalize there. Kaiser Permanente, one of the nation’s largest health care providers, was forced to change its internal system of handling patient grievances and complaints by the California Supreme Court. Its in-house program was criticized as not objective or neutral.3 Kaiser then assembled a panel of experts for a in-depth study of its internal arbitration program. The extensive report recommended an independent arbitration process, funded, but not controlled by Kaiser. Their dispute resolution program is now managed by an independent administrator, and Kaiser was compelled to adopt new practices, not by market forces, but by the courts. By not being proactive and addressing the problem, that insurer and others to follow will lose more control over outcomes of disputed practices.
The time is ripe for a new approach to resolving conflict arising out of a personal and intimate relationship such as health care delivery. With emphasis on listening and empathy rather than legal wrangling, patients and physicians can willingly reconstruct or dismantle their relationship in a manner and fashion wherein they retain control of the outcome with some mutual respect or recognition of needs. There can be nothing more frustrating than finding yourself embroiled in a lawsuit or similar proceeding, when you believe you are in the right. One of the secrets of dealing with difficult people in our lives is to figure out how to play the hand we’re dealt, rather than complaining and moaning about what that hand is.
1 Hickson, G.B., Clayton, E.W., Entman S.S. et al., Obstetricians Prior Malpractice Experience and Patient Satisfaction With Care, JAMA, November 1994: 272:1583-1587.
2 Nichols, Michael P, The Lost Art of Listening, The Guilford Press, New York, 1994.
3 Engalla v. Permanente Medical Group, 64 Cal. Rptr.2d 843 (1997)