Author: Shashwata Sahu, LL.M.
ABSTRACT
Medical litigation is responsible for a growing part of overall healthcare expenses. Arbitration and mediation, two forms of alternative dispute resolution, have grown in popularity as a means of resolving disagreements between patients and their healthcare providers. Some regions in India have recently established Alternative Dispute Resolution mechanisms in response to a series of medical disputes as well as a deteriorating relationship between physicians and patients. As part of our research, we looked into the use of Alternative Dispute Resolution (hereinafter,ADR) in the healthcare industry to resolve medical negligence cases. Report on latest medical malpractice legislation, and also the difficulties and achievements of these ADR programmes Report. Communication is critical to resolving conflicts following medical blunders. Apologizing and disclosing earlier than usual has been shown to reduce legal expenses by 50% to 67% or even settlements by a substantial amount, according to some reports. Mediation avoids 75-90 percent of disputes, saving $50,000 on average per dispute. Ninety percent of those who take part in mediation say they are happy with the outcome. However, arbitration is regarded as less time-consuming and far less efficient than litigation. Inside this existing legal environment, pretreatment arbitration clauses have been upheld by several latest court rulings. ADR is hindered by NPDB reporting requirements, which are a major roadblock. The present tort system may also be restructured as a consequence of ADR in a manner that minimises costs and improves both parties' satisfaction. ADR's acceptance would increase if physicians had a simpler time communicating their findings.
INTRODUCTION
Numerous promising outcomes have been produced with the application of ADR approaches. ADR institutions that have created a process for disclosing adverse events did so after one was made public. In the aftermath of an unfavourable event, patients and providers must establish a line of contact by making their concerns known. Disclosure does not preclude or ban court action; however, it may lead to a shorter and even more cooperative mediation process instead of a longer, higher involved trial process. Identifying and resolving issues in healthcare is made possible by the transparency and resolution phases. Hospitals become learning institutions which are more proficient in designing their programmes as personnel get familiar with the openness principle. Because ADR reduces both parties' court costs and decreases their compensation rates, it can be cost-effective. Mediation rather than litigation can lead to a more amicable settlement, which reduces the burden on patients and healthcare professionals. A patient may be ready to put up with an unpleasant outcome in exchange for a courteous encounter with their physician if trial anxiety can be avoided. Patients and clinicians, health professionals and health insurance firms, plus insurance companies and patients/insured people all interact in some way reflective of the triangle of connections in healthcare coverage. Any of these connections could benefit from the use of ADR in resolving differences. When discussing medical malpractice litigation, ADR tends to focus on the connection between a patient and their healthcare provider.
ADR IN HEALTHCARE
When it comes to cutting expenses, avoiding legal action, and raising both parties' level of satisfaction, ADR is a proven winner. However, unlike other types of civil as well as commercial litigation, medical malpractice lawsuits have taken longer to gain traction.[i] ADR can take the following forms:
1. Early Disclosure and Apology
In terms of ADR, there is a range of formal and informal options. Negotiation is the most casual method of communication. The meeting is nothing more than an attempt by both parties to find a solution to their problems. Such discussions might be aided by legislation or initiatives that make it easier for people to make amends or that give them the freedom to speak openly about sensitive topics without fear of their words being misconstrued and then used as evidence of carelessness in court. So-called early disclosure and apology programmes are designed to address situations like this. Suing for medical negligence is widespread because patients seek an explanation and an apology, but the threat of legal action deters this as well. An apology from a doctor or hospital could be perceived by the plaintiff's lawyer as an admission of negligence, as well as an open and honest explanation about what transpired could just strengthen their case..
2. Mediation
A neutral third party facilitates discussions through mediation. As opposed to an attorney or even a retired judge, a qualified mediator typically has a better chance of success. A whopping 90% of those who have tried mediation say it was a success. When the informal method gives both sides a chance to express themselves, it's understandable that it's cathartic. The medical community welcomes the opportunity to say how aggravating it is to be sued while they're at fault and how this severely affects their caring of other patients. It is also quicker and more efficient to resolve disputes through mediation. There is an average mediation period of just one to three days, with cases ending in 85 to 165 days, according to a survey of ADR organisations. In comparison, resolving a dispute through litigation can take up to five years. And furthermore, the cost of hiring an attorney has considerably decreased. The average amount of time attorneys spend preparing for trials was 36 hours, whereas the average amount of time spent preparing for mediation was 2.5 hours.
3. Arbitration
Arbitration is a regulated and legally binding process in ADR. Most arbitration panels and arbitrators are made up of attorneys who represent the opposing sides in the dispute being arbitrated. The arbitrator then comes to a conclusion and issues a ruling. A key difference between arbitration and other types of conflict settlement is that the arbitrator's judgement is usually final. Arbitration's binding nature, on the other hand, might hurt both the plaintiff and the defendant. The majority of malpractice claims brought against doctors have been found to be without merit, as several court rulings have demonstrated. When defending themselves against malpractice claims, doctors may benefit from a jury trial to show that they were not at fault. This right is given up when a doctor agrees to bind arbitration and has to go straight to an arbitrator. Regardless of the fact that arbitrators tend to hand down considerably smaller awards than juries, it is doubtful that they will give the plaintiff a considerable sum if the plaintiff is found to have been negligent or not negligent at all.
DIFFERENT ADR MODELS
As a foundation, healthcare providers in India can choose and implement several ADR models from those available worldwide. Developed to alleviate the high legal expenses and inconsistent jury awards connected with malpractice cases, "the Chicago Rush Medical Center Model" could be used in India. Early exchange of premeditation materials, rapid presentations by both participants at the initial mediation conference plus caucus discussions are emphasised in this Model's mediation agreement. Provisions for expense, secrecy, and appointment of a mediator are also included in this Agreement. It has taken 3 to 4 hours of Mediation to settle 82% of the cases that have been mediated over the first five years.
India likewise uses "the Pew Mediation and ADR Model". In 2002, hospitals in Pennsylvania began using the mediation concept. Mediation of health-related issues in Bangladesh is essential to ensuring patient safety. When mistakes are made in medical care, a better error model entails increasing the flow of information between patients and doctors, as well as resolving patient complaints via mediation and equitable settlements.
In accordance with the Specified Model:
● In hospitals, doctors and hospital employees have the time required to discuss disclosures;
● That there's an apology among all parties involved, along with leaders and physicians;
● After such an error or adverse event, debriefing as well as support for healthcare professionals;
● The medical community learns communication skills for disclosure conversations. Mediation is used to resolve pending legal disputes.
There is a similar pattern of success with ADR methods utilised in the healthcare industry to those outlined above. "The University of Michigan mediation paradigm and the Veterans Affairs mediation approach" are both examples of third-party impartial mediators. Patients would appreciate these cost-effective options. Medical litigation in India is on the rise, and these models can be tailored to match the country's specific legal requirements.
ADR FOR RESOLUTION OF MEDICAL MALPRACTICE DISPUTES
It is possible that ADR can have both advantages and disadvantages when it comes to medical negligence claims. More control over the course as well as the result of a dispute resolution process, including more flexibility in deciding compensation, are generally promised by ADR procedures. When it comes to resolving a medical malpractice claim through alternative dispute resolution (ADR), medical experts can act as advisers and even make decisions on behalf of the participants. ADR, likewise, offers a plethora of potential drawbacks. The cost-effectiveness of ADR in medical malpractice cases and its possible clash with human rights are two of the major advantages and disadvantages we examine in this chapter. The majority of medical professionals are well aware of the possibility of being sued for negligence on a regular basis. Millions of dollars are spent each year by hospitals, offices, and individuals to reduce the risk of infection.
Distrust is possibly the most damaging part of this. Doctors and patients alike should be able to put their faith in one another. Everything has the potential to go awry at any moment. This is critical for the patient's well-being. Medics are afraid of getting sued. As a consequence, both parties may lose sight of their primary objective: providing the highest quality of care for their patients.
ADR has the potential to help both healthcare providers and patients alike. Just a few of the benefits of openness include improved patient safety, reduced costs, and better protection for those who work with and for them.
1. Disclosures that are more accurate and complete
It is possible for doctors and hospitals to hide their involvement in medical procedures that go wrong in order to escape legal action. In order to figure out what went wrong, patients are filing lawsuits against them.
2. The following are a few tidbits of advice
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ADR, on the other hand, allows parties to share information in order to establish a mutually beneficial deal. Doctors and patients are encouraged to be open and honest with each other through arbitration, mediation, and other types of alternative ADR. It's possible to come to an agreement on a fair settlement from there.
3. A Better Quality of Life for Patients
Mediation and arbitration can not only lead to more open disclosure of an occurrence, but they can also prevent a repeat of the same event. An ADR can also save money for healthcare providers, and that can improve patient care and hospital conditions, lowering the risks of specific treatments and increasing patient safety.
4. Reduced Prices
The more ADR is utilised to settle medical disagreements, the less patients will rely on malpractice litigation to get answers and justice. The cost of malpractice insurance for doctors will drop, as will legal defence costs, and the amount of money they lose if their lawsuit is successful.
As a result, doctors and their patients both benefit financially. Litigation costs both sides money and cannot guarantee a positive conclusion. When disagreements can be settled out of court, both parties benefit financially.
Patients and Doctors are Safe -
Alternative conflict resolution protects both doctors and patients. Thus, it is possible for both parties to converse without fear of the other party harming them. Only one side can win in litigation, but both parties can win in arbitration. It is imperative that the ADR procedure be managed correctly if it is to be successful. Make sure your patients and doctors get the treatment they need if anything really goes wrong by contacting Hart & David.
JUDICIAL PRONOUNCEMENTS
ADR does not have to be viewed as a panacea for resolving medical conflict; rather, it should be viewed as a venue for bringing the conflicting parties together and finding a cooperative solution early on. Adopting the ADR approach over litigation as a means of resolving conflicts has been recommended by the Supreme Court of India. “A Supreme Court ruling ‘Food Corporation of India vs JoginderpalMohinderpal (1989)’[ii] said that Arbitration has enormous urgency today when there has been an explosion of litigation in the Courts of law constituted by the sovereign powers.” In the case of "Afcons Infrastructure v. Cherian Varkey Construction (2010)"[iii], the apex court emphasised the importance of mediation, especially in commercial matters, and observed that this type of ADR is ideal for parties facing complex issues that they are willing to resolve through negotiations. It will be difficult to change from litigation to ADR in the healthcare industry in India, due to cultural and linguistic differences, as well as a wide distribution of inequities. Six flaws in court adjudication were recognised by Justice R V Raveendran:
● Delay in resolving the issue,
● uncertainty about the outcome,
● rigidity in the result/solution,
● high expense,
● difficulty enforcing, and hostile environments are all factors to be aware of.
WITH THIS PROVISION, ACCESS TO JUSTICE MAY BE AT ODDS
There is little doubt that one of the most fundamental rights is the right to access justice, which is enshrined in both "the Universal Declaration of Human Rights and the European Convention on Human Rights". It could be regarded as a fundamental human right because it is a precondition for the fulfilment of all other rights. The right to a fair trial can only be realised if access to the courts is guaranteed. The European Court of Human Rights says that because the right to justice is so important in a democratic society, it must be given a broad interpretation. As a result, the most prevalent breach of "Article 6 of the European Convention on Human Rights", protracted proceedings, can be efficiently circumvented through ADR, but the standard of a formal judicial procedure cannot be guaranteed. It is possible that the plaintiffs will not receive all of the damages they are entitled to in a lawsuit. In addition to determining opposing interests, even arbitrators have a predisposition to compromise rather than give an exact account of events. Because of their certainty in the facts, certain parties may not be satisfied with the ADR procedure.
CONCLUSION
According to Jimmy Carter, “Unless both sides win, no agreement can be permanent.” In the medical sector, ADR approaches can lead to a win-win situation in which both parties' interests are protected.
For ADR and its possible negative repercussions, more research is required. Effective coordination and consultation necessitate the time and effort of all parties involved, including hospital staff and attorneys. While mediators' familiarity with the words used to resolve cases may improve the valuation of such cases over time, mediation can much more correctly evaluate a case's value than arbitration. Lawsuits involving settlement (or litigation) and financial costs may escalate if more adverse results are discovered. However, in the context of ADR, similar arguments might easily be used to support claims of right to justice violations. No, despite what the future holds, legal services, including ADR, will not go away. They will simply be provided in new and innovative ways. As the legal industry adopts technology, online and traditional ADR procedures will continue to boost the legal industry's potential.
Because of the widespread availability of knowledge made possible by the internet, society today faces a steady stream of new problems and opportunities. When it comes to dealing with claims or lawsuits in the legal business, these obstacles and opportunities are not unique. E-filing and docket management aren't the only ways in which the legal system might benefit from a cyber solution for conflict management. An effective and productive court system can be achieved by using ODR technology.
Regardless of whether the mediation is "live" or virtual, the parties should be honest about whether mediation is an appropriate alternative. Once the two sides have agreed to try mediation, they must commit to finding a solution to their differences. Everyone's interests are served by this. Keeping costs low while balancing risk and reward is critical to ensuring that both parties are confident in the benefits of a negotiated solution.