Mediating the Medical Malpractice Case: Special Considerations and Strategies for Success

By Shuli Green


Why Mediate Medical Malpractice Cases?

Medical malpractice cases are expensive and time-consuming to litigate and require specialized knowledge and understanding of complex medical issues. Mediated settlement negotiations offer numerous advantages over jury trials. The emotional toll, expense, potential damage to reputation, and uncertainty of success at trial, among other things, make medical malpractice cases particularly well-suited for mediation.


The Benefits of Mediating Medical Malpractice Cases

Medical malpractice mediation is less costly than preparing and conducting a multi-day trial. Eliminating the expense of multiple experts appearing and testifying at trial affords parties greater flexibility in settlement negotiations. For example, some medical malpractice insurance policies are eroding policies, meaning the cost of defense is deducted from the insurance limit. Higher litigation costs result in less money available to a defendant to settle a case. In the reverse, the added cost of going to trial reduces a plaintiff’s net recovery from a jury verdict.  Mediation avoids prohibitive expenses and if successful, guarantees an immediate recovery without the added time, cost, and uncertainty associated with post-trial motions and appeals.


There is also a profound emotional cost in a medical malpractice trial. Medical malpractice trials can take an emotional toll on plaintiffs and family members who are forced to relive the trauma associated with a catastrophic injury or possibly death. On the other side of the courtroom, the emotional toll on the defendant health care professionals can be equally severe as the medical defendants suffer humiliation and shame from being accused of harming a patient. Mediation affords plaintiffs and their families a safe environment to talk openly about how an injury has impacted their lives. It also provides defendants an opportunity to express remorse even if they do not believe they were negligent.


Mediation is far more efficient and convenient than trial. Physicians and other individual healthcare providers may take days or even weeks away from their practice to prepare for and testify at trial. Mediation may last only one or two days and can be scheduled so as not to disrupt a physician’s practice. Defendants may also insist on making confidentiality a condition in a mediated settlement agreement, thereby avoiding the negative publicity of a large jury verdict.


Mediation also gives parties an opportunity to disentangle claims against multiple defendants with varying degrees of exposure. Target defendants (those who believe they may have a greater risk of exposure or liability) have an opportunity to settle early. Partial settlements can help an injured plaintiff manage their immediate needs while pursuing claims against the remaining defendants. For example, a plaintiff who requires nursing care or extensive rehabilitation may not otherwise have the resources to stick it out until trial. A partial settlement can provide the money necessary to get therapies started sooner rather than later.


Mediation eliminates the uncertainty and risk of a jury verdict. No one knows who will show up for jury duty and ultimately be seated in the jury box. It could be a highly empathetic jury willing to award a large verdict or a conservative jury inclined to favor the defendant doctor. No one knows. With mediation, there is no need to choose a jury, which is significantly more difficult in a medical malpractice context. Plaintiffs want jurors who can understand medical issues, have broad life experience, and a team player mentality — and who may be skeptical of the medical community. Defendants want jurors who will identify with the defense and may be more vested with the medical community. Regardless of how the jury is stacked, however, a favorable jury verdict for either side is impossible to predict.


Mediation also eliminates the potential impact (either positive or negative) of a defendant physician testifying.  While many doctors perform well on the stand, others can be perceived as arrogant; as lacking empathy; or seeming callous or evasive, all of which can lead to unpredictable verdicts, not to mention harm to their reputation. Despite this, most jurors tend to have a bias or leaning towards doctors and medical professionals.  Historically speaking, 80% of medical malpractice cases typically result in defense verdicts but based on a host of recent verdicts around Georgia, jurors seem to be more open to holding doctors accountable.


Issues Unique to Medical Malpractice Cases

Several factors can affect the ability to mediate a medical malpractice case. If the defendant’s malpractice insurance policy contains a “consent to settle” provision, the defendant physician can refuse to settle and insist on going to trial, even if the insurance company wants to settle.  The issue of whether a defendant doctor made an independent, informed decision to withhold consent may serve as the basis for a bad faith claim against an insurer in the event of an excess judgment against the healthcare professional.


Medical malpractice settlements and judgments must be reported to the National Practitioners Data Bank, and many states have similar state reporting requirements. Defendant doctors may opt to go to trial rather than have a large settlement reported to these agencies, as settlements can affect employability, admitting privileges, or insurance premiums. In extreme cases, multiple settlements can result in the loss of a physician’s medical license. This reality may preclude some physicians from considering a mediated settlement agreement.


Considerations for Attorneys

Ideally, plaintiff’s counsel should confirm that the defendants will come to the mediation with a minimum offer (especially if the mediation is court-ordered) and that they have consent to settle. Plaintiff’s counsel should be prepared to give a detailed opening statement at mediation to educate the mediator and to demonstrate that he or she has a command over the facts, medical and legal issues, and expert testimony.


Defense counsel should remain unified in their defense of multiple defendants. There may be finger-pointing at trial, but if it’s possible to get the case completely settled at mediation, that is preferable to risking a jury placing the lion’s share of the blame (and verdict) on one or two defendants.


Mediation is confidential and, therefore, it presents an opportunity for a defendant to express empathy (or even regret) to a plaintiff without concern that his or her comments will be construed by a jury as an admission of fault. Many medical malpractice plaintiffs feel angry and resentful because a trusted healthcare provider refuses to acknowledge that he or she has suffered a life-changing injury. Regardless of whether the physician or healthcare provider believes he or she breached the standard of care, acknowledging a plaintiff’s injury head-on can reduce the emotional temperature at mediation.


Counsel for both sides should also consider whether demands and offers should be global or whether they should be conveyed separately among multiple defendants. Issues of vicarious or derivative liability, indemnification, and coverage should be considered in making this determination. The parties may consider scheduling a pre-mediation conference with the mediator to discuss these issues. The parties should always raise any unique issues that may impact the process to the mediator beforehand.


Finally, even if the case does not completely settle at mediation, attorneys should consider using the process to resolve outstanding discovery disputes or to negotiate a high-low agreement before trial. The important thing to remember is that, in complex cases, mediation is sometimes just the first step of the process.


About Shuli Green

Shuli Green, Mediator

Shuli Green is a mediator who began her legal career as a staff attorney to the United States Court of Appeals for the Eleventh Circuit. From 2001 to 2013, Shuli practiced with several Atlanta-based defense firms where she specialized in complex litigation, personal injury, insurance defense, construction defense, medical negligence, products liability, premises liability, and civil rights litigation. Shuli started her own law practice in 2014, focusing primarily on business litigation, contract disputes, and personal injury.