Relevance of Alternative Dispute Resolution in Medical Malpractice

Relevance of Alternative Dispute Resolution in Medical Malpractice Prachi Patel BBA-LLB Contents Introduction: A need for Alternative Dispute Resolution in Medical Malpractice 3 Alternative Dispute Resolution as an substitute to Litigation 7 Negotiation 9 Mediation 9 Arbitration 10 Mediation-Arbitration (Hybrid Process) 11 Current legal and political developments favouring Alternative dispute resolution 12 Morrison v. Therm-O-rite Products Corp., 12 Webb v. Priest et al. 12 Camp v. EMSA Ltd. 13 Obstacles 14 Comparison of ADR: Ireland, United Kingdom and Untied States 15 Ireland 15 United States of America 15 United Kingdom 16 Conclusion 18 Bibliography 20  Introduction: A need for Alternative Dispute Resolution in Medical Malpractice “Vaidyo Narayanao Harih” has rightly said that Doctor is Narayana (God) Himself. Relationship between two more human in any profession is solely give and take. Except for two professions which does not stop but continues, one is teaching and another is healthcare. These are the two profession where both teacher and doctor are next to God. Doctor is the one who heal our wounds and help us keep the vehicle of our soul intact. SREERAM MANOJ KUMAR, Doctors and Teachers are the Second God!!!!! Speakingtree.in (2013), http://www.speakingtree.in/blog/doctors-and-teachers-are-the-second-god (last visited Jul 7, 2017). Doctor and a patient carry a fiduciary relation where the patient keeps the utmost confidence and trust in the doctor. The historical model says that patient is dependent on doctor’s professional authority, believing that he or she would be benefited from physician experience. As a result of which a paternalistic model of care developed. If the patient disputed with the Physician’s declaration about appropriate care, their opinion were generally not call forth and were ignored. After the Tort reform and Consumer Protection Act, 1986 the relation of Physician-patient has developed towards sharing decision making. This model gave patient’s an autonomous right to take various opinion, make a choice and take actions on personal values and beliefs. Patients are also entitled to measure the risk and benefits to alternative treatments. This model educated the patients in many ways, MARYJO LUDWIG & WYLIE BURKE, Physician-Patient Relationship Physician-Patient Relationship: Ethical Topic in Medicine, http://depts.washington.edu/bioethx/topics/physpt.html (last visited Jul 7, 2017). simultaneously the laws in health care become more stringent. Awareness about health care laws starting spreading, and patients got alert. According to the law, doctors are humans and so they were allowed to make certain mistakes. They have to maintain specific standard of care in accordance with the circumstances of the cases. Over the years many claims were filed against the health care providers for negligence. It is very important to understand the difference between medical error and medical malpractice. The paper explicitly talks about medical negligence. It does not talk about medical error. Anie (patient) went to physician, while she was suffering from Viral Hemorrhagic fever. Before prescribing medication, she filled a form of allergies and ticked on allergic to sodium. Physician without reading the form gave the medicine which contained sodium. Anie’s fever raised and started vomiting. Next day she went to other physician, and he recognised that medicine contained sodium, as result he changed the medication. Here though the physician was negligent, the damage caused to the patient was minimal. Any error which does not cause permanent injury to the patient is called medical error. For medical malpractice the patient must have caused permanent injury. To prove medical malpractice case four elements should be present. First proper standard of care was not maintained. Secondly there must be a breach causing injury. Causation is the third element, were the patient has suffered emotional or physical injury and finally damages; what is the jury and what harm is caused. ZACHARY MATZO, Elements to Prove in Medical Negligence Cases MedicalMalpractice.com, http://www.medicalmalpractice.com/resources/medical-malpractice/medical-negligence-lawsuits/4-elements-prove-medical-negligence- (last visited Jul 7, 2017). To get better understanding, in the case of Robbie Powell, a ten year school going boy Robert Powell lost his life in hospital in 1990. The father of the deceased within months suspected that something was wrong with the diagnosis. He fought 15 years to find the truth. He was right and gave justice to his son’s death. There were multiple errors which led to failure in treatment. The Adrenocorticotropic hormone (ACTH) test which could have confirmed the diagnosis was not done and the family was not informed about the suspicion of life thereat until the child died. LENINNIGHTINGALE, The Case of Robbie Powell NURSE BLOG INTERNATIONAL (2014), https://nursebloginternational.wordpress.com/2014/10/06/the-case-of-robbie-powell/ (last visited Jul 7, 2017). So in this case all the four elements which could prove the medical negligence on the part of healthcare providers was present. above all this case was solved through the process of litigation. When a case is solved through litigation, it can take end number of years, there are cases which took three decades to come to a solution, which was beneficial to neither party. This paper discuses various options through which medical cases can be resolved quickly and economically. According to the survey conducted by the American Medical Association (JAMA), medical negligence is the third leading cause of death in the United States after cancer and heart disease. LEARN VEST, 10 Things You Want To Know About Medical Malpractice Forbes (2013), https://www.forbes.com/sites/learnvest/2013/05/16/10-things-you-want-to-know-about-medical-malpractice/#3de306a9416b (last visited Jun 29, 2017). When a patient visit the doctor or emergency room of a hospital, the patient is entitled to receive certain standard of care. Unfortunately, the standard of care differ from hospital to hospital. In utmost cases, the hands that were assumed to be helping the patient, becomes the cause of their death. On behalf of ROSEN LOUIK & PERRY, 13 Disturbing Cases of Medical Malpractice | Pittsburgh News Rosen Louik & Perry, P.C. (2011), http://www.caringlawyers.com/blog/2011/02/13-disturbing-cases-of-medical-malpractice.shtml (last visited Jul 1, 2017). When such incidents happen, patient’s file a claim against the doctor. Just like other industries, Disputes in health care are extremely common and disputes arising are of differing interests. SANDY S. SANBAR et al., Legal Medicine Google Books (2007), https://books.google.co.in/books?id=8gajBQAAQBAJ&pg=PA309&dq=why%2Bchoose%2Balternative%2Bdispute%2Bresolution%2Bin%2Bhealthcare&hl=en&sa=X&ved=0ahUKEwjTnKmwv6nSAhWMK48KHX7GBwgQ6AEIIDAB#v=onepage&q=why%20choose%20alternative%20dispute%20resolution%20in%20healthcare&f=false (last visited Apr 2, 2017). No other area of litigation has been the subject matter as much interest in ameliorating medical malpractice. A discrete element of this interest has centred on efforts to alter the process by which medical malpractice cases are being handled. Since the mid-1970’s, nearly every state has deliberately made an attempt to change the ‘tort reform’ intending to change the manner in which malpractice suits are being handled. For discussions of malpractice reform efforts including descriptions of procedural changes, see U.S. Gem. Accr. OFF., MEDICAL MALPRACTICE: A FRAMEWORK FOR ACTION (1987) [hereinafter FRAMEWORK FOR ACTION]; PAUL C. WEILER, MEDICAL MALPRACTICE ON TRIAL (1991); Glen 0. Robinson, The Medical Malpractice Crisis of the 1970's: A Retrospective,49 LAW & CONTEMP. PROBS., Spring 1986, at 5; Walter J. Wadlington, Legal Responses to Patient Injury: A Future Agenda for Research and Reform, 54 LAW & CONMrEP. PROBS., Spring 1991, at 199. Before going further, it is very important to understand what amounts to medical negligence. For medical malpractice case, it is necessary that the provider must have made a mistake and the mistake must make caused serious harm to the patient. Common errors include: (1) Wrong diagnosis; failure to make the right diagnosis or making right diagnosis too late, (2) Surgical errors; sometimes medical instruments are left inside the body or surgery is performed on wrong part of the body, (3) Prescription mistake; at times wrong amount or wrong medicine is prescribed, (4) Unsafe condition; on some occasions, the wounds are not totally cleared and providers fail to check the condition, due to which, when travelling, the patient may get affected by serious infection, (5) Failure to monitor patient; if the mother and the child are not monitored properly during the delivery due to which C-section was not performed immediately and caused harm to mother or child or both, in all such circumstances are considered as medical malpractice. For example: A patient was suffering from abdominal pain, so he was immediately taken to the emergency room. The emergency doctor failed to diagnose appendicitis and the patient was send home. Several hours later, the patient was not able to bare the pain and died of shock. Here the doctor failed to recognize the symptoms of appendicitis, which caused the death of the patient. So, all the four elements to prove medical malpractice are present. To prove medical negligence on part of the provider, it is requisite to prove the mistake and serious harm caused to the patient. DENNIS ABRAMS, Examples of Medical Negligence AllLaw.com, http://www.alllaw.com/articles/nolo/medical-malpractice/examples-negligence.html (last visited Jun 27, 2017). Patient’s safety and prevention of medical faults is the mutual aim sought by all in healthcare- patients, providers and legal practitioner. But the agreement come’s an end when there is GARY A. BALCERZAK & KATHRYN K. LEONHARDT, Alternative Dispute Resolution in Healthcare Alternative Dispute Resolution in Healthcare (2008), http://www.psqh.com/julaug08/resolution.html (last visited Apr 2, 2017). an error or system failure CECILIA ONG , Medical mediation: Bringing everyone to the table The Bulletin (2016), http://bulletin.facs.org/2013/03/medical-mediation/ (last visited Apr 4, 2017). or bad outcomes, and the disputes over “how” and “why” arises. Earlier disputes were sought by litigation. To avoid the damaging effects of legal actions, Doctors (physicians) may not disclose the information to patient which might have adverse event. Patients fill malpractice claim against the doctors in order to extract information which might explain their undesired outcomes. GARY A. BALCERZAK & KATHRYN K. LEONHARDT, Alternative Dispute Resolution in Healthcare: A Prescription for Increasing Disclosure and Improving Patient Safety Psqh.com (2008), http://www.psqh.com/julaug08/resolution.html (last visited Apr 2, 2017). Litigation is much time consuming, pain & distress and costly. The theory of Alternative Dispute Resolution is an initiative to supplement or alter the traditional ligation. It includes panoply of mechanisms which are designed to improve communication between the parties and reach to the solution of the disputes outside the courtroom, and the techniques may be implemented before, during or after litigation. There are several categories in which a malpractice dispute can be resolved- Arbitration, Mediation, Negotiation, and Hybrid Methods. The degree of privacy and the level of independence may vary. Moreover the decisions may also differ through various methods of Alternative Dispute Resolution. Supra 12. Through this paper the author will be discussing how Alternative Dispute Resolution in the field of healthcare is used in various countries and why Alternative Dispute Resolution in healthcare can be useful in India. Alternative Dispute Resolution as an substitute to Litigation To recognize the effect of Alternative Dispute Resolution on the health care system, it is very important to understand the alternative to dispute resolution, Litigation, must be scrutinized. Precisely, in health care matters, the judgment and their consequences must be understood. Some of the negative effects of litigation process comprises: SHEEA SYBBLIS, Mediation in the Health Care System: Creative Problem Solving, 6 Pepp. Disp. Resol. L.J.Iss 3 (2006), http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1120&context=drlj (last visited June 26, 2017) (1) “the inability of tort litigation to deter physician negligence;” (2) “the detrimental effect on the doctor-patient relationship;” (3) “the high emotional and financial costs to the litigants;” and (4) the procedurally inefficient, cumbersome, and time-consuming process of litigation.” Ibid 15 Moreover, the present system is lacking in giving proper compensation to the injured patient and urging for quality improvement. The tort system does not encourage the payers who have actually suffered injury from medical negligence to bring their case to the court. However, litigation process, does not give sufficient compensation to the injured person. Litigation under compensates the patient with minor injuries and gives over compensation to patients with major injuries, so no proper remedies are available for the payers suffering from medical negligence. Furthermore, it does not encourage sufferers to file claim against the providers. Additionally, this process continues for years but, the root cause of the dispute is not solved. Generally, the main reason behind the disputes is trust issue and miscommunication between the health care providers and patients, which can further lead to recurring disputes and new malpractice claim. The process can be emotional as well as stressful, which damages the parties. This affects the most important relationship of doctor and patient. Due to its negative effect, instead of building relationship it tends to deteriorate. On the other hand, Alternative Dispute Resolution such as Arbitration and Mediation has been one of the most considerable processes. When a provider wants complain to be taken seriously, litigation is not the appropriate way to resolve the dispute. For those disputes were misunderstandings and hurt feeling are concerned, a less costly and time consuming process i.e. mediation process will be often appropriate. In most of the cases, payers do not really want money from the provider instead, they want an explanation about their anxieties or an apology. METZLOFF B. THOMAS, Alternative Dsipute Resolution Strategies in Medical Malpractice, Alaska Law Review., Vol.92, 429 https://kb.osu.edu/dspace/bitstream/handle/1811/79700/OSJDR_V10N1_023.pdf?sequence=1 It also gives an opportunity to payer and providers to discuss on all issues, including non-legal issues. MCMULLEN ANDREW, Mediation and Medical Malpractice Dsiputes: Potential Obstacles in the Traditional Lawyer’s Perspective., Journal of Dispute Resolution, Vol. 1990, No. 2., http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1197&context=jdr The process is more private and confidential as compared to litigation. THORPE WAYNE, JAMS, Effective Use of Mediation and Arbitration in Health Care Disputes., Bloomberg Law Reports. https://www.jamsadr.com/files/uploads/documents/articles/thorpe-healthcare-disputes-bloomberg-2011.pdf When a payer’s health and safety are at risk, time is of great importance. So at times, delay can adversely affect the outcome, and barriers to care like delay, cost, complexity and formality can be avoided. Courts can be an effective means in rare circumstances. MATHEWS ROD, The CPA in Mediation and Arbitration, The CPA Journal, December 2003. http://archives.cpajournal.com/2003/1203/dept/d124803.htm It gives an opportunity for thoughtful resolution of emotional and highly demanded disputes surrounding medical errors, end of life and patient’s safety. Alternative Dispute Resolution allows utilization of dispute resolution professional, with applicable expertise to look into the matter when needed. Supra 19 One of the most disturbing aspects of alternative dispute resolution from the consumer point of view is the issue of privacy that makes it so desirable to the providers. For example, very less publicity of malpractice claim is received so the providers are less investigated by the state medical council, ALICIA ROBERTS, Alternative Resolution Takes Less Money, Time; So Arbitrate or Negotiate - JustDon'tLitigate, 5 Managed Care L. Outlook 1, 4 (Jan. 1993).which means the providers are less likely to lose their patients. So even if the provider is not competent, he will be secured. Besides only when more payers are harmed, the state medical council will hear the provider’s behaviour. Another problem of privacy is that, ADR does not develop the law, or the precedent on which payers can rely. The result of medical malpractice cases are based on current law and not on contraction, expansion and extension of principles of law. Precedent needs to be changed or set properly in some cases, where health care claims are rejected litigation is appropriate. Supra 17. Against this drop back, there are many positive points to alternative dispute resolution which cannot be ignored. As discussed earlier, other than litigation, alternative techniques which can be used to resolve the dispute in medical malpractice are as follow: Negotiation Out of all the forms of alternative dispute resolution, negotiation is the most informal technique. This technique is also proclaimed as early disclosure and apology program. It is a separate process at the same time it is one which is imbedded in other techniques. In this process, whether or not there is cognizance of any conflict, payer and provider come to an agreement. There are no official or standard rules about how to conduct negotiation. In a negotiation process, there are no rules about where a negotiation should take place, how long negotiation should continue or which party should speak first. The parties have full control over the process as well as the outcome. Parties are responsible for whatever the outcome is. Alternative Dispute Resolution in Health Care, ANA Continuing Education | Workplace Advocacy | Alternative Dispute Resolution in Health Care (1970), http://ana.nursingworld.org/mods/archive/mod190/ceadrful.htm (last visited Jul 2, 2017). Mediation One of the most overused yet misinterpreted terms in the ADR is Mediation. It is an informal process. In medical malpractice cases mediation can be effective, JOHN J. FRASER & THE COMMITTEE ON MEDICAL LIABILITY, Technical Report: Alternative Dispute Resolution in Medical Malpractice Pediatrics (2001), http://pediatrics.aappublications.org/content/107/3/602 (last visited Apr 2, 2017). because the doctors and their institutions are worried about their professional image and reputation, same way patients don't want social stigma attached to their disease or suffering. DANNY WH LEE & PAUL BS LAI, The practice of mediation to resolve clinical, bioethical, and medical malpractice disputes | HKMJ The practice of mediation to resolve clinical, bioethical, and medical malpractice disputes | HKMJ (2015), http://www.hkmj.org/abstracts/v21n6/560.htm (last visited Apr 5, 2017). Generally the parties themselves meet with a natural third party or a mediator who is an impartial and unbiased in resolving the dispute. Mediator has no authority to impose a solution on the parties nor is the decision of mediator binding on the parties. Supra 17. And the parties can end the negotiation at any point of time. This can be a benefit to the defendant physician. DAVID H. SOHN & B. SONNY BAL, Medical Malpractice Reform: The Role of Alternative Dispute Resolution Clinical Orthopaedics and Related Research (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3314770/ (last visited Apr 4, 2017). In 90% of the cases if the physician feels that they have been wrongfully sued, then they can protect their rights by going to the trial. THOMAS E. GREER, Alternative dispute resolution in medical liability cases Alternative dispute resolution in medical liability cases (2009), http://www.aaos.org/AAOSNow/2009/Jul/managing/managing7/?ssopc=1 (last visited Apr 4, 2017). Mediation protects the right and is comparatively informal. Normally parties don't hire Attorney, so the process becomes simple and relatively less expensive. The informal atmosphere gives flexibility in awarding remedies. For example, when litigation leads the way to monetary awards, mediation leads to many solutions like sympathy from the doctors or execution of future safety rules, which the patients find it more fulfilling. Mediation process gives higher self-satisfaction rate among the plaintiff and defendants. Supra 28. To bridge the legal gap in relation to medico-legal dispute resolution, mediation is a successful mechanism. Supra 26. Arbitration Arbitration starts when parties mutual decide to use an arbitrator, generally a discretely retained individual is selected who gives decision in place of judge. Thus arbitration can be both (a) a voluntary process, here the parties in some point of time have agreed to its use, and (b) a binding process, dispute will be conclusively resolved. Furthermore, the parties have substantial power to determine for themselves the specific details of the arbitration procedure. MELTZLOFF THOMAS, Alternative Dispute Resolution Strategies In Medical Malpractice., Alaska Law Review, Vol. 92, 429. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1056&context=faculty_scholarship, procedural variables relating to the conduct of an arbitration hearing include, among others: (1) the length of the arbitration hearing; (2) the number of arbitrators; (3) the required qualification of arbitrators; (4) the process for selecting arbitrators; (5) the amount of discovery permitted to be conducted. Parties can agree to do arbitration at any point of time. Thus, the litigants can voluntarily agree to submit the claim to binding arbitration even after the suit is filed. Ibid 32. For example, Dr. Gabey and Patient Alina, decided that they would solve their problem through the process of mediation and if they are unable to come to a solution they would submit their problem to arbitration. The parties failed to mediate. Therefore, they put forward their claim to arbitration. Then they followed the process of finding an arbitrator and gave him or her guidelines they wanted the arbitrator to follow. If the parties have no specific demand about how the process should carried on, the arbitrator will offer rules and guidelines he or she has used in the past. Alternative Dispute Resolution in Health Care, ANA Continuing Education | Workplace Advocacy | Alternative Dispute Resolution in Health Care (1970), http://ana.nursingworld.org/mods/archive/mod190/ceadrful.htm (last visited Jul 2, 2017). Arbitration does not play a significant role in solving medical malpractice cases, however its potential application has been widely advocated. Supra 32 Some of the reason why arbitration has not been more prevailing despite efforts is being made. (1) Many of the statutory provisions are apparently designed as consumer protection measure which in fact serves to limit the use of arbitration agreements. (2) Attorneys from both the side are generally opposed to routine use of arbitration. The judge or jury is often viewed by both parties attorneys as a relevant “dispute resolver” in many malpractice cases, specially the cases where there is critical factual dispute. (3) Some attorney believes that the arbitrators are likely to make compromise decisions which do not give full justice to their client’s interest. Especially when physicians possess a strong interest in justifying their conduct. (4) Malpractice insurer have lack of interest in arbitration, they are concerned as to if the advance process for declaring malpractice claims were established, the number of claims would be high. Mediation-Arbitration (Hybrid Process) Mediation-Arbitration is the combine process of mediation and arbitration, where the same person acts as a mediator as well as arbitrator. If the parties are unable to solve the dispute through mediation, the med-arbiter is given the authority to make the final decision. Arnold Swartz and Associates, Mediation-Arbitration, http://www.swartzmediation.com/pg8.cfm (last visited Jul 2, 2017). The mediator has the authority to allow the payer and provider to decide whether they want to talk collectively or caucus. Mediation-Arbitration MED-ARB, MEDIATION-ARBITRATION CDRS, http://www.constructiondisputes-cdrs.com/about%20MEDIATION-ARBITRATION.htm (last visited Jul 2, 2017). Usually the mediator is also the arbitrator. The payer fear the lack of fairness once they have told the restricted story to the mediator-arbitrator, for which they have concern that the parties will not be open during the mediation. The solution to this is that the arbitrator can switch the role to co-mediator and exclude from individual caucus, with parties keeping the right to confidentiality from the potential arbitrator for a specified portion of the discussion. Dr. PETER LOKE, Meidtaion and Arbitration in Healthcare Dispute Resolution, https://www.sma.org.sg/UploadedImg/files/Publications%20-%20SMA%20News/4605/Professionalism.pdf (last visited Jul 4, 2017) At times, arbitration take longer time then expected to come to a solution, in such cases it is beneficial to both the parties to carry out the claim through med-arbiter process. Current legal and political developments favouring Alternative dispute resolution Morrison v. Therm-O-rite Products Corp., 468 F. Supp. 1295 (1979) The present case was heard by Pennsylvania State. The payers took help of arbitration panel, and under the State Malpractice Act, arbitrators were given Original Exclusive Jurisdiction, to hear and decide any case brought before them by the payer or their representatives for any kind of loss or damage caused to them from the medical services. Here, the decedent (Charles O. Morrison) had to undergo a surgery. The provider performed the surgery with the help of defendant’s equipment “Hypo-Hyper Thermia”. After using this equipment, the patient received third degree burns over considerable areas of the body and as a result of which the patient died. The widow filed for multiple actions like breach of warranties, strict liability, negligence and misrepresentation under Pennsylvania’s wrongful Death and Survival Statutes against the Therm-O-Rite Products Corporations (defendant). Moreover, before filing the suit, the plaintiff issued a notice of complaint against the medical group which includes a physician, two nurses and a Medical Centre for medical malpractice. The Defendant (Therm-O-Rite company) had filled a motion to dismiss the claim, on the grounds that the plaintiff was unsuccessful to state a claim upon which reassurance can be granted and added that according to Pennsylvania Health Care Services Malpractice Act, the court lacks jurisdiction to hear the case, and so the motion to dismiss was granted under the law of Pennsylvania. Morrison v. Therm-O-Rite Products Corp., 468 F. Supp. 1295 (M.D. Pa. 1979), , http://law.justia.com/cases/federal/district-courts/FSupp/468/1295/1806377/ (last visited Jun 23, 2017). Webb v. Priest et al. 413 So. 2d 43 (Ct. App. Fla., 1982). A man with severe abdominal pain was examined in the hospital’s emergency department, and unitary infection was diagnosed, thereafter he was discharged. Later, after five days, he was checked by another general surgeon, who was practicing at different hospital. According to the surgeon, a lump was diagnosed at an undetermined origin in the abdomen and advised him to get hospitalized, however the patient refused and subsequently the same day, the patient’s appendiceal abscess ruptured, and an emergency surgery was performed at third hospital. While performing the surgery, the surgeon unfortunately patient’s colon was perforated. As a result, additional surgery was required. Numerous physicians and hospitals were involved in plaintiff’s proceeding, which involved original emergency department, physician for failure to diagnose the abscess. The court allowed Plaintiff’s attorney to comment during opening statements and arguments but, was refused to comment on the results of pretrial mediation. During that period, Florida Law provided that results of such mediation could be brought to the court’s attention only during such times, and court had the discretion to limit the comments relating to mediation results. Alternative dispute resolution: A remedy for malpractice disputes?, AHC Media - Continuing Medical Education Publishing (2000), https://www.ahcmedia.com/articles/46261-alternative-dispute-resolution-a-remedy-for-malpractice-disputes (last visited Apr 11, 2017). Camp v. EMSA Ltd. 518 S.E. 2d 482 (Ga. Ct. App., 1999). In this case, a 79 Year old woman was admitted in the emergency department of camp hospital, how was suffering from “mid-sternal chest pain” that spread to her shoulder and neck. She informed the nurse that her symptoms like vomiting, severe headache, sweating and diarrhoea started earlier that day after she sneezed in the garden. The emergency physician was concerned that she might be having heart attack. In order to rule out that possibility, the physician lined-up certain tests to conduct. Neurological test were negative. It did not show any neck rigidity, deteriorating headache, loss of functions in the extremities, or other symptoms which could prove a neurological problem. Then the physician asked her to conduct X-Ray for sinuses, the X-Ray was positive and treated her for sinusitis. Later, the woman was discharged. Following day, the woman expired. Expert’s testimony was conflicting over the cause of her death. Ibid 43 A suit was filed against the doctor medical malpractice. The jury gave the decision in favor emergency physician. The medical care given by the physician met the standard of care. AMY E. ELLIOTT, Arbitration & Managed Care: Will Consumers Suffer if the Two Are Combined? 10 Ohio St. J. on Disp. Resol. 417 (1995). This case took 5 years, between the event which led to malpractice claim and the final decision of the court. Once the process of litigation starts, approximately it takes 35 months to solve the case but, this case took 5 long years to pass a decision. American Arbitration Association Health Care Claims Settlement Procedures, Mediation Rules, Rule 3, effective July 1, 1992, Web site: www.adr.org. If the parties would have tried to resolve this problem through alternative dispute resolution method, it would have solved quickly, and would have been cost effective. Obstacles The provider has to report medical malpractice case to the National Practitioner Data Bank (NPDB), including the payment derived from ADR process. Supra 25.The information in the data bank is limited and is not available to general public ANTIQUE NGUYEN, PreCheck Blog The National Practitioner Data Bank: What Healthcare Compliance Officers Need to Know | PreCheck (2016), https://www.precheck.com/blog/national-practitioner-data-bank-what-healthcare-compliance-officers-need-know (last visited Jul 7, 2017)., which is considered boon to the providers, but obstruction to the payers. Payers do not get fair opportunity in selecting their physician. It was deliberately made to prevent fake providers from simply relocating to a new hospital or new state when adverse track records were accepted. Entries in NPDB are specific to the physician on whose behalf the payment is made and it becomes permanent. Supra 30. The problem with the NPDB is that it urges the efficient settlement of non-negligence cases. Most of medical malpractice cases filed does not contain negligence. Payers sue the providers as an outcome of emotional reasons or out of unrealized expectations, in such cases it is inefficient to litigate for both the parties. But, to arrive at a conclusion, defendants have nominal damaging consequences. Physicians give explanations for the circumstances to avoid having their names entered in the NPDB, by pursuing to take litigation, which tends to favour them. Supra 42. Another obstacle in use of ADR is distrust. Although ADR has seen a rapid growth in other fields but it is lacking in the field of health care. In 1970s and 1980s, various forms of tort reforms were implemented, including several that were compulsory and clumsy. The strength of ADR is that there are several option which are best implemented flexibly rather than mandatory. For instance, Arbitration is best when there is a real evidentiary point of disagreement, specially when a complex issue of science is involved. This is because an expertise of that particular field is selected. But in a lawsuit, when patient’s need is information and apology, the best choice is informal and non-binding process of mediation. DAUER EA. Alternatives to litigation for health care conflicts and claims: alternative dispute resolution in medicine. Hematol Oncol Clin North Am. 2002;16:1415–1431. doi: 10.1016/S0889-8588(02)00069-2. Comparison of ADR: Ireland, United Kingdom and Untied States Ireland Ireland is facing an ever growing rapid increase of problems and changes in the field of healthcare, which has direct impact on the experiences of patients and the interactions of those working in this field. HUSSEY ARRAN, Irish Medical Professional Negligence Claims & ADR: Still Underused? (2016) https://www.linkedin.com/pulse/irish-medical-professional-negligence-claims-adr-arran-dowling-hussey One of the main reasons for increasing problem is that the payer on whom the wrong has been done, wants to take their claim to the court, so that they can get a huge amount of compensation, moreover the apology and the experience of their difficulty they have faced should be known to the world. Many claims get media coverage when the claim is taken to the court. But arbitration does not get such public recognition. Mediation: Healthcare ADR, CPD Seminars (2010), https://www.cpdseminars.ie/articles/mediation-healthcare-adr-ireland/#_ftn29 (last visited Apr 11, 2017). Another barrier in terms of experience of arbitrators is that the specialist nature of medical malpractice is not sufficiently catered. Generally arbitrators with dual qualification (medical and legal) are hard to find. For example, approximately there are 2300 members of the Irish Bar, out of which 5-10 barristers are dual qualified. Nevertheless it is difficult to accept that there are not much qualified arbitrators to hear medical negligence cases. Such cases of medical malpractice are heard by Superior Courts Judge. Around 60 Judges sit, out of which none of them holds a medical qualification, as far as the author knows. Supra 50. United States of America Advancement of ADR in American Healthcare System was started in late 1990’s. In July 1998, The American Bar Association, The American Arbitration Association, The commission on Healthcare Dispute Resolution and The American Medical Association got collaborated to form the commission on Healthcare Dispute Resolution and produced the “Healthcare Due Process Protocol”, the goal was to make the best use of ADR in resolving disputes healthcare environment. Patients, healthcare providers and managed healthcare organizations had begun to explore ADR as a method to resolve dispute in an effective manner, as courts and administrative agencies became less accessible. Supra 51 In 1995, Due to unforeseeable growth in jury awards and legal costs the field of medical malpractice cases in Chicago, the Chicago’s Rush Medical Centre developed the “Rush Model”. It is probably the most referenced example of Alternative Dispute Resolution. Supra 11 This model features mediation conferences, mediation agreement and above all co-mediators, which includes a lawyer who would typically represent the plaintiff in a medical liability case and a lawyer who would defend those cases. In the first 5 years of the program, 55 cases with spanning errors in diagnosis, medication and treatment were mediated. More than 80% cases were solved within one year and in less than 3-4 hours of starting mediation of the lawsuit being filed. Though the payouts were lower than expected, patients were willing to accept the award since they were quickly mediated. Supra 14 A unique Alternative dispute resolution program was instituted by the department of Veterans Affairs, which is known as “The Veterans Affairs Model”. The model was originally piloted by the Veterans Affairs Medical Centre in 1987 at Lexington, Kentucky, after seeing rise in number of lawsuits and the range of awards. Supra 56 The program provided the full disclosure of the event of the event which led to harm and expression of apology on behalf of the institution and the provider. The system allows the payer and their family members to bring their lawyer and discuss the offer of compensation early in the process. With the implementation of this program, the Veterans Affairs hospital became the lowest payouts and between 1990-1996, the average settlement of claim in Lexington was approximately half then other institution. Moreover, the duration of cases declined from 2-4 years to 2-4 months. JOSEPH S. KASS & RACHEL V. ROSE, Medical Malpractice Reform—Historical Approaches, Alternative Models, and Communication and Resolution Programs, Mar 16 AMA Journal of Ethics (2016), http://journalofethics.ama-assn.org/2016/03/pfor6-1603.html (last visited Jul 3, 2017). United Kingdom In United Kingdom the English Court in Burne v A [2006] ADR.L.R. 01/25, ordered the parties in a medical malpractice claim to enter into mediation with a view to end the “anxious and distressing case.” The mediation in the above case lasted for one day to arrive at the resolution. In 1995, the National Health Service (NHS) launched Medical Negligence Mediation Pilot Scheme in response to concern about increase in number of negligence cases and to the criticisms about how they were managed. Several remedies were given to the claimants such as apologies, new treatment plans, extensive explanation of medical decisions etc. The NHS complaints procedure, as an extension to the Pilot Scheme, was planned to provide patients with an explanation and apology if needed. But the procedure was not designed to provide compensation for negligence claims, the patients can use the procedure only if there main purpose is to get an explanation, or to obtain more information about what had actually happened, so that they can decide what other actions might be appropriate. Pre-Action Protocol for the Resolution of Clinical Disputes, Civil Procedure Rules (2017), http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_rcd.htm (last visited Apr 11, 2017). The Panel of Law firms have been instructed by the National Health Service to consider the appropriateness of mediation and monitor the outcome of every case. It was estimated that mediation would reduce the legal costs, fees and compensation by 5%. Medical Malpractice cases are often solved with the help of Alternative Dispute Resolution mechanism in US and UK. Alternative Dispute Resolution has not yet penetrates in Ireland but it is consistent with contemporary economic dysfunctions. The main goal of ADR is to get a mutually agreeable resolution. It is used to secure the payer-provider relationship. The success of cases solved in US and UK through the process of ADR can be the impetus for exploring the benefits of ADR in Irish Health service. Supra 49 Conclusion Litigation is traumatic, adversarial and harmful to the physician-patients relationship. Litigation stress can be a burden on both the parties. Supra 40. Until the providers and payers openly do not discuss the factors that lead to errors and adverse effect, the current safety crisis in healthcare will not be resolved. More favourable environment needs to be encouraged for healthcare providers to recognize, analyses and report errors without the threat of litigations and without compromising the patients legal rights. Supra 13. Alternative dispute Resolution has undoubted shown positive impact on Physician-Patient relationships. It has improved the efficiency of resolving cases, it is time consuming, reducing the costs, enhancing the confidentiality of proceedings and encourages improvements in patients safety. Supra 58. Despite these benefits Alternative Dispute Resolution process is not used in various countries. One such country is India. ADR in the field of healthcare is not practiced in India. Supra 23. Nearly 3 crore cases are pending in the courts. AMRITA SINGH, 5 Reasons Why There Are Nearly 3 Crore Pending Cases In Indian Courts Youth Ki Awaaz (2016), https://www.youthkiawaaz.com/2016/05/judiciary-pending-cases-india/ (last visited Apr 12, 2017). Litigation is not always an appropriate way of solving a dispute, it can sometimes make the problem worse. Litigation cannot be used by all aggrieved consumers, because it takes years to get compensation from the court and the awards generally do not correspond to injuries, and so it is not worth taking the case to the court. Supra 66. There is need to change the manner in which India chooses to address medical malpractice cases. The present legal system has too much inequity. Systematic deficiency’s such as delayed and protracted litigation, heavy litigation costs and dependency on Indian judicial system does not provide effective justice to both payer and providers. Supra 46. One of the best examples can be the recent judgment on medical negligence S. CHANCRE MEGHANA, BADA MATH SURESH, Progress in Medicine: Compensation and medical negligence in India: Does the system need a quick fix or an overhaul., (2016), Vol: 19, issue: 5, Pg 21-27, http://annalsofian.org/article.asp?issn=0972-2327;year=2016;volume=19;issue=5;spage=21;epage=27;aulast=Chandra;type=3 Kunal Saha vs State of West Bengal & Ors, W.P. No. 15515 (W) of 2014 Three physicians were held responsible for the death of a woman in AMRI hospital, Kolkata. Judgment was given after 15 years and a compensation of 11.4 1 crore was awarded. If Alternative Dispute Resolution mechanism existed in India, this case would have not continued for such a long time and the compensation amount could have been less as compared to the compensation given by the court. This process would have benefited both the parties. The government needs to act and invest in health care services before it is too late. If ADR in the field of health care is brought in the Indian system, Payers and Providers will be benefited at large. ADR has both advantages and disadvantages, but it will surely reduce the burden from the courts and help in giving speedy and better judgments since it is time consuming, confidentiality is maintained, cost effective. 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