Medical Malpractice Mediation Study for New York City Operated Hospitals: Barriers and Successes ACR Health Care Section Teleseminar - December 5, 2006 Copyright 2005 Chris Stern Hyman

Slide 2 - Origins of the Project  Discussions between 2000 and 2002 with three New York City agencies  Columbia Law School sponsored the study and received a grant in 2003  Columbia University’s Institutional Review Board approved the study  One-year observational, feasibility study began in 2004 Copyright 2005 Chris Stern Hyman

Slide 3 - Objectives of the Study  Offer mediation for medical malpractice cases against NYC HHC  Document the results of mediations  Assess client, attorney and other participants’ satisfaction with and attitudes toward mediation  Publish an article Copyright 2005 Chris Stern Hyman

Slide 4 - Selection Criteria for Cases  Completed medical review  Case was not a candidate for City’s early settlement program  Estimated exposure less than $400,000 (lifted during the study)  No physician named as co- defendant Copyright 2005 Chris Stern Hyman

Slide 5 - Cases Referred/Mediated in Study  29 med. mal. cases referred by city 5 plaintiff’s attorneys declined  24 cases accepted mediation offer: 2 settled before mediation 3 not able to be schedule for mediation 19 were mediated Copyright 2005 Chris Stern Hyman

Slide 6 – Participants in Mediations  Co-mediators  Plaintiff’s and defendant’s attorneys  Plaintiff (16/19)  Rep. HHC (17/19)  Rep. Comptroller’s Office (10/19)  Family members or friend (7/19)  Translator/paralegal (4/19) © 2006 Chris Stern Hyman

Slide 7 - Case Mix  19 cases mediated with allegations: 8 failure to diagnosis or treat 6 surgical error 3 injury during a procedure 1 medication error 1 incorrect diagnosis  5 of the 19 cases were wrongful death cases © 2006 Chris Stern Hyman

Slide 8 - Discovery in Cases Mediated  6 no discovery (3 settled)  9 plaintiff deposed (7 settled)  2 plaintiff and some or all of defendant depositions completed(1)  2 discovery complete and cases on trial calendar (2 settled) Copyright 2005 Chris Stern Hyman

Slide 9 - Year Action Commenced for Mediated Cases  1995 = 1 case (settled)  2001 = 2 cases (neither settled)  2002 = 3 cases (all settled)  2003 = 13 cases (9 settled) Copyright 2005 Chris Stern Hyman

Slide 10 - Settlements  13 cases settled, 6 did not  Ranged from $17,500 to $400,000  Median was $111,000  1 monetary and non-monetary settlement  7 of 13 apologies of sympathy  3 of 13 apologies of responsibility © 2006 Chris Stern Hyman

Slide 11 - Apologies Apology of sympathy - “I’m sorry this happened to you.” Apology of Responsibility - “I’m sorry I/we did this to you.” -Use when liability is clear and after consultation with risk manager or lawyer. Copyright 2004 Chris Stern Hyman and Carol B. Liebman

Slide 12 – Apology of Responsibility Case of Apology of Responsibility: Mr. H suffered from asthma and went to the ER because of difficulty breathing. He was there for 14 hours and went into cardio- pulmonary arrest. Resusitation attempts were unsuccessful. ©2006 Chris Stern Hyman

Slide 13 – Apology of Sympathy Case of Apology of Sympathy: Mr. J was a vital, independent man in his 90’s. He fell from his chair in a rehabilitation facility, broke his hip, injured his shoulder, and lost his independence. He returned home isolated and dependent. © 2006 Chris Stern Hyman

Slide 14 - Mediators’ Data Next 3 slides contain data compiled from answers given by mediators in the structured interviews following each mediation.

Slide 15 - Attorneys’ Attitude Towards Mediation SCALE: 1=very favorable, 2=favorable, 3=neither, 4=unfavorable, 5=very unfavorable © 2005 Chris Stern Hyman

Slide 16 – Mediators Assisting Attorney Case of plaintiff’s attorney asking the mediators for help: Mr. C’s nose was lacerated because an IV pole fell on him. He claimed it also caused neck pain, but the medical records from a car accident indicated a pre-existing injury. © 2006 Chris Stern Hyman

Slide 17 - Attorneys’ Preparation SCALE: 1=very prepared, 2=prepared, 3=neither, 4=unprepared, 5=very unprepared © 2005 Chris Stern Hyman

Slide 18 - Attorneys’ Data Next 9 slides contain data compiled from answers given by attorneys in the structured interviews following each mediation.

Slide 19 - Satisfaction with Settlement © 2005 Chris Stern Hyman %

Slide 20 - Satisfaction with Process © 2005 Chris Stern Hyman %

Slide 21 - Time in Joint Session © 2005 Chris Stern Hyman %

Slide 22 - Time in Caucus © 2005 Chris Stern Hyman %

Slide 23 -The Mediators Were Impartial © 2005 Chris Stern Hyman %

Slide 24 – Competing Interests Case of client and attorney having differing goals for the mediation: Ms G was 18 when she had a breast reduction procedure. After surgery she wore same bra size and had scarring. She wanted 2 nd procedure for reduction and for scarring. © 2006 Chris Stern Hyman

Slide 25 - If I Had It To Do All Over Again, I Would Encourage My Client to Mediate Again (ONLY ON PLAINTIFF’S ATTORNEY’S QUESTIONNAIRE) © 2005 Chris Stern Hyman %

Slide 26 - In the Future, I Will Be Favorably Disposed to Mediation of Other Medical Malpractice Cases © 2005 Chris Stern Hyman %

Slide 27 - Compared to the Settlement Reached In Mediation, I Believe That If I Had Gone to Trial, The Monetary Settlement Would Probably Have Been: © 2005 Chris Stern Hyman %

Slide 28 - Plaintiffs’ Data Next 8 slides contain data compiled from answers given by plaintiffs in the structured interviews following each mediation.

Slide 29 - Satisfaction with Settlement © 2005 Chris Stern Hyman % 1 2 6

Slide 30 - Satisfaction with Process © 2005 Chris Stern Hyman %

Slide 31 – Non-Monetary Remedy Case of a non-monetary remedy: Mr. L, in his 30s with sickle cell anemia, went to ER twice in 3 days. On 2 nd visit family saw no attending physicians and staff could not answer their questions. It was the day before a national holiday. © 2006 Chris Stern Hyman

Slide 32 - How Important Is It To You That You Received Your Settlement Money Sooner Than You Would Have Had You Gone to Trial? © 2005 Chris Stern Hyman %

Slide 33 - In the Mediation, I Got a Better Understanding of the Hospital’s Side of the Story © 2005 Chris Stern Hyman %

Slide 34 - If I Had To Do It All Over Again, I Would Choose Mediation Again © 2005 Chris Stern Hyman % 7 111

Slide 35 - If a Friend of Family Member Had a Medical Malpractice Case, I Would Encourage Him or Her to Try Mediation © 2005 Chris Stern Hyman % 44 11

Slide 36 - Compared to the Settlement Reached In Mediation, I Believe That If I Had Gone to Trial, The Outcome Would Probably Have Been: © 2005 Chris Stern Hyman % 3 22

Slide 37 - Limitations of Study  Small sample size  Cases only from government facilities  Exclusion of cases with named physician defendants © 2006 Chris Stern Hyman

Slide 38 - Findings of the Study  High satisfaction levels of all participants with mediation  Cases with limited or no discovery were successfully mediated  Attorneys spent 1/10 time preparing case for mediation vs. trial  Apology and settlement are associated  Cases less likely to settle with no plaintiff present at mediation  Plaintiff’s attorneys ask mediators for help © 2006 Chris Stern Hyman