Mediation Breaks the Wall of Silence
by Joan E. Roover, JD. MSW, Executive Director and Dawn D. Effron, JD, Senior Mediator, Center for Health Care Negotiation

A new era of patient safety has begun. Never before have medical errors received more attention in the media – or precipitated more dialogue in the medical community. This openness is good news for all patients. It can ultimately be good news for health care professionals as well.

Hospitals are looking at medical errors in markedly different ways than ever before. As the Institute of Medicine’s landmark report, To Err is Human, focuses national attention on the number of errors causing the deaths of thousands of Americans each year, hospitals are seeking ways to identify and correct flawed internal systems and procedures that contribute to error.

Many hospitals are developing blame-free reporting policies to identify faulty internal systems or procedures that contribute to error. They are reporting sentinel events to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), and developing a root-cause analysis for each factor that contributed to the error. Through these analyses, hospitals are better understanding the root of medical errors and fixing them rather than erecting a wall of silence after the hospital learns of an error or adverse event.

The latest extension of this open examination of medical errors is directed squarely at the relationship between health care professional and patient. Health care professionals, for the first time, are being encouraged to talk openly with patients about medical errors that occur in their care. According to the NPSF’s Statement of Principle, “When an error contributed to the injury, the patient and the family or representative should receive a truthful and compassionate explanation about the error.”

As of July 1, (year?), JCAHO will require hospitals to have a system or organizational practice in place that assures that “patients and, when appropriate, their families are informed about the outcomes of care, including unanticipated outcomes.”

While the prospects for improved patient care are enormous, this new era of openness is fraught with danger. Imagine how difficult it will be for doctors, nurses and health care administrators to sit down to give patients and/or family members this troubling news without any training in having these conversations.

Although many patients will be able to have constructive conversations with their health care professionals and resolve their concerns without further conflict, others will not. The danger is that these others will be left feeling they have nowhere to turn but the legal system. The already-overloaded legal system is not the appropriate venue to fix the system or address the deep concerns of the human beings – patients and professionals alike.

There is, however, an alternative to engaging in an adversarial, time consuming and costly malpractice lawsuit: mediation.

Just as mediation is being used to better serve the interests of parties in divorce, labor and employment disputes, it is an excellent vehicle to serve the interests of patients, health professionals and hospitals in the aftermath of medical error. Mediation provides for a confidential, privileged meeting between patients or family members and the institution and health care professionals.

The Massachusetts mediation privilege statute provides confidentiality for the mediator’s statements, notes, files and other work product, and for communication by any person, including the parties to the complaint, made while in the presence of a qualified mediator.

With this confidentiality protection, the patient, family and physician talk with the help of a neutral, impartial mediator skilled in facilitating a discussion about both the facts and the emotions surrounding the incident.

Used appropriately, mediation allows the parties to identify their interests and generate options to satisfy those interests. Experience suggests that when patients and providers work out their differences face to face, they often generate better solutions to problems. Patients feel they have more influence over the health care system, and providers emerge with a stronger commitment to implementing corrective action. Mediation can be used to resolve even the difficult issue of financial compensation for the patient or family in the event of serious injury as a result of medical error.

Mediation complements – but does not replace – strong and decisive action by regulatory agencies chartered to protect the public. Litigation may continue to be the most appropriate alternative for some people. Those contemplating litigation should, be aware however, that an award derived from the civil justice system does not require corrective action on the part of the doctor or medical system.

Litigation provides only a transfer of money – and few patients achieve even that. Mediation, when appropriate, can accomplish the transfer of money, corrective action and so much more, all without the added emotional and financial costs of litigation.

While this is a national debate, in Massachusetts we are clearing the path for this emerging alternative. In working with patients and health professionals, The Center for Health Care Negotiation, a Lexington, Mass. not-for-profit organization, brings together physicians and patients in mediation. In the experience gained from this process, three recurring needs of injured parties were identified.

1. Patients and their family members want an explanation of what happened and why it happened.

2. They want an apology or acknowledgement from the provider; and

3. They want to know a change has been made to ensure that what happened to them would not happen to someone else.

Physicians, even when initially skeptical, often leave mediation feeling they have learned something significant from seeing their practice through the eyes of the patient. They often make changes in their practice to create a safer, more sensitive patient care experience. Physicians appreciate the opportunity to explain what happened and why, express their feelings about the error and convey an acknowledgement or apology to the patient. Litigation cannot accomplish any of this. Mediation can.

This new openness – with patients, in hospitals and with the media – marks a fundamental shift away from the “wall of silence” that has characterized the aftermath of medical error. Our current system too often creates adversaries of patients and their health care professionals in the wake of medical error out of fear of a lawsuit. This wall of silence separates the patient and family from their professional caregivers, those who can be most helpful and informative at the time of crisis.

This new era of openness creates the opportunity to reconsider how we negotiate through the difficult terrain following medical error. Mediation is more responsive to the human dimensions of problems in the system, more geared to correcting the factors that contribute to the injury and can be an ideal process to satisfy the interests of all who are affected by medical error. NPSF