Unique Challenges to Mediating a Medical Malpractice Case

Mediating a medical malpractice case brings with it many challenges that are not present when mediating other types of cases. From the outset you must determine whether or not your case can be mediated at all. This presents a challenge unique to medical malpractice cases. This is because if any of your defendants are physicians, there will likely be a consent clause in the doctor’s insurance policy. Therefore, the doctor will need to execute a consent to settle with their insurance company before any real settlement discussions can occur. This is often a difficult hurdle to overcome before undertaking mediation and one of the main reasons medical malpractice cases go to trial at a higher rate than any other types of matters. Doctors must report any settlement to the National Practitioner Data Bank, which is something doctors often wish to avoid. Should the doctor not agree to consent, mediation with that defendant cannot occur, so it must be evaluated whether it is worthwhile to mediate with any of the remaining parties and potentially carve that doctor out via joint tortfeasor release, or if you are in an all-or-nothing scenario. Should the parties desire to mediate and the defendant doctors agree to consent to settle the litigation, the next step is to pick an appropriate mediator.

You will want to select a mediator that has experience mediating medical malpractice cases, preferably one who has tried these cases as an attorney or a judge. As the tone and tenor of medical malpractice cases are unique compared to cases against a faceless corporation, a mediator familiar with how these issues are routinely dealt with at trial can aid in both raising and deflecting such issues when appropriate. For cases that have insurance through the Medical Care Availability and Reduction of Error Fund (Mcare), this presents another unique challenge as Mcare will only allow you to mediate with one of their approved mediators. I have never had a problem selecting a mediator Mcare approves of, however, on several occasions mediators I believed to be fair and qualified have been rejected solely because Mcare will not agree to that particular mediator. Also keep in mind that Mcare only issues payment one time per year on December 31st and in order to have payment issued on that date Mcare must have the fully executed release by the end of August. Otherwise you will have to wait another year for the check.