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Mediation Resource Packet for Physicians / Providers |
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Nature of Mediation Mediation is a form of conflict
resolution that brings two parties together in a process conducted by an
impartial third party (the mediator). Medicare is introducing this process as
an alternative to medical record review for beneficiary complaints. Mediation
is a process that often results in increased satisfaction to the
participants. It is not a binding arbitration. Participation is voluntary. By
its very nature, mediation is a process in which the parties willingly decide
to participate. One or more of the parties may need to be persuaded, but it
is the eventual consent of the parties that gives the mediator the authority
to work with them; there is no other basis for that authority. Confidentiality is a key component of
mediation. In order for mediation to be successful, both parties must feel as
free and open as possible in their attempts to work through their conflict. No record is kept of the proceedings and
any notes taken during the mediation session are destroyed. Nothing said
during the mediation can be used against either party in a court of law. All parties, including the mediator, need
to agree that all statements made during the process will be kept
confidential unless the parties agree otherwise. If and when the parties reach an agreement, however, that
agreement and its particulars are usually released to the QIO in order to
monitor any terms. How
Does Mediation Differ From Arbitration? Arbitration and mediation are differing
forms of conflict resolution, as is a trial in civil court. Arbitration is an adversarial process in
which the arbitrator does fact-finding by hearing each of the parties and by
examining any witnesses and/or documents that the parties may present. During
a designated period of time, usually 15 to 30 days, the arbitrator weighs the
evidence and decides the case in a written award. The award is usually
binding and enforceable by a court. Sometimes parties prefer a non-binding or
advisory award. Mediation is a consensual and
collaborative process in which the parties have agreed to participate in good
faith and to authorize a third party, the mediator, to facilitate efforts to
reach a resolution of their conflict. In contrast to arbitration, the parties
themselves decide the outcome and create a mutually-agreed-upon resolution.
The primary focus of the mediation is on the relationship between the parties
and the development of each person’s insights into self as well as to the
other person’s perceptions. Once both parties have reached an
understanding and decided how to settle the conflict, the mediator writes up
an agreement based on what has been said. He or she then reviews the agreement
with both parties, who then, along with the mediator, sign the agreement. If the two parties involved in a
beneficiary complaint do not agree and come to a resolution, the patient can
then choose to let the case go into the traditional medical record review
process. Mediation in Healthcare Complaints – Its Potential
Effects and Advantages Collaborative
Problem Solving Experience has shown in many instances
that mediation can forestall highly adversarial means of dealing with a
complaint or a conflict such as litigation, appeals to public officials, or
attempts at media publicity. A high
percentage of beneficiaries become convinced that collaborative problem
solving, by way of mediation, is a desirable alternative to adversarial
confrontation. Time
and Resources The time and resources spent on
mediation are relatively minimal and are certainly worth investing for the
potential rewards of generating good will, understanding, and the
constructive resolution of a complaint. A mediation session typically takes
two to four hours, significantly less time than traditional medical record
review. Every effort is made to schedule a mediation session at a neutral
location, convenient for both parties. As an alternative, mediation can take
place via telephone. Participant
Satisfaction A major reason for the growing use of
mediation as a way of dealing with conflicts is the satisfaction that many
individuals experience when they find that they have the opportunity to
communicate directly with the responding party. Under such circumstances, it is not unusual for a complaining
party to be satisfied by a reasonable explanation of why the events occurred
the way they did. Furthermore, an apology (if appropriate), as well as
assurances that other beneficiaries will not experience the same situation,
can also add to the success of mediation. Repeated experience demonstrates
that even a fragmentary meditative intervention can achieve understanding and
resolution of problems before they escalate into adversarial confrontations. Relation
to Internal Grievance Process The fact that you may be using
mediation, and/or arbitration in your internal grievance process is, of
course, not the same thing as an external intervention. There will always be cases that will not
respond to an internal process because of a perception of bias resulting in
some sort of adversarial negotiation.
To allay any anxieties about external intervention, it may help you to
know that mediation is the most effective means of working through problems
cooperatively with your patients. Selection
of Cases for Mediation & Examples The types of cases that will go to
mediation are those where significant quality of care problems are not
present. After a complaint is received from a beneficiary, an initial peer
physician review will be done to make this determination. Some examples of cases for which
mediation is suitable: · The beneficiary says they were given the wrong
medicine, and the medical record shows the medicine was correct, but the
instructions given were not clear or completely understood. · The beneficiary's representative states his or
her parent was discharged before he or she was able to walk. The medical
record shows that the patient could walk with assistance, physical therapy in
the home was ordered, but the family did not understand what arrangements had
to be made to start the care at home. · The beneficiary states that the care received
from an orthopedist for neck pain did not help her. The medical record shows
that the physician discussed a variety of available options for care.
However, the beneficiary did not make a choice and did not return for a
follow-up visit. Malpractice
Claims Data
shows that there are two major ways that practitioners and providers can
reduce the risks of malpractice claims: 1. Through prevention, by finding out and addressing
why a patient complains and takes legal action 2. By addressing complaints, when they do occur, in
the least confrontational and the most personal human way, investing the time
it takes in talking with the patient about the complaint More frequently than not, a complaint
arises from a patient’s perception of error or negligence rather than
certifiable acts or omissions. The key factors in complaints are a breakdown
in communication, resulting in patient dissatisfaction. The highest frequency
of malpractice claims comes from patients who feel rushed, ignored, receive
inadequate explanations or advice, and perfunctory attention during routine
visits. Malpractice attorneys say that 80% of malpractice cases come out of
communication issues. There is also some evidence that good communication can
enhance the quality of care. When complaints do occur, one of the
least confrontational ways to address them is through mediation. References: Localio, A.R., et al, “Relation Between
Malpractice Claims and Adverse Events Due to Negligence”: Results of the
Harvard Medical Practice Study III, New England Journal of Medicine, 1991;
325/4, 245-51. Lown, Penchansky, DBA & Macnee, Carol,
PhD, RN, “Institution of Medical Malpractice Suits” in Medical Care, 32/8,
1994, 813-831. Frequently Asked Questions by Physicians/Providers About
Mediation in the Medicare Beneficiary Complaint Response Program Who
makes sure that the terms of a mediation for a beneficiary complaint are
complied with? To the extent that a party’s compliances
or non-compliances are predictable during the hearing, a mediator’s role
includes the effort to prevent, so far as possible, misunderstandings that
might result in non-compliance. The mediator’s function does not extend
beyond the hearing. After the mediation session, the QIO is responsible for
monitoring terms of the mediated agreement to assure compliance. I
am perfectly satisfied with medical record review. Why should I try something like mediation that I’ve had no
experience with? From a business point of view, mediation
is an effective way to avoid litigation, saving you significant amounts of
time and money in the long run. Even if many of such lawsuits might
ultimately be dismissed, they take up your time and attention, and cause
stress to the patient-physician relationship. From a professional standpoint, mediation allows you and the
complainant to determine the resolution, rather than a third party. Previous experience with mediation shows
that both the physician and the patient are very satisfied with the outcome
of mediation. By letting your patients know that you are open to mediation,
you are sending them the message that you want to hear their concerns,
improve the quality of care you provide, and ultimately have their best
interests in mind. By communicating this message and displaying this
attitude, you are bound to see increased patient satisfaction and potentially
more patient referrals as well. I
am confident in my clinical expertise and abilities and the quality of care I
provide to my patient. What good will a mediation do? Mediation is conducted in a neutral
environment where each party has the opportunity to explain their side of the
story. People are generally more inclined to listen to one another when there
is the presence of a third person, or mediator. Besides, there may be other
factors in your relationship that are leading your patient to doubt your
word. It may be a matter of trust at
this point. It may also be that the
patient simply wants to feel that their complaint is really being heard. The fact that you are taking the time and
trouble to meet with them may convince him/her to trust what you say. But
isn’t it risky to go into a mediation and get entangled in a situation where
a complaining patient can use what I say to hang me up in court later on? The mediation process is consensual and
confidential. Whatever is said in a mediation cannot be used against either
party as evidence in court. Even if you agree to mediate, you cannot be
compelled to come to an agreement if it doesn’t seem satisfactory to you. If the complainant is inclined toward
going to court, communicating with you in a mediation might change his or her
mind. If the patient is inclined
toward mediation, you need to ask yourself whether your declining to
participate in mediation would increase or decrease the patient’s likelihood
to sue. Will
the QIOs mediate cases involving potential medical malpractice? Any case could potentially involve
medical malpractice if a beneficiary chooses to make such a claim. However, we will exclude cases involving
gross and flagrant issues, concerns that indicate a pattern of substantial
violations in the expected standard of care and cases already in
litigation. As part of the
Beneficiary Complaint Response Program, the initial physician peer review
procedure will include determining if mediation is appropriate for a case and
can be offered as an alternative to the medical records review. You
have said that a mediator does not judge the right or wrong of a case; then
what does he/she do? The mediator helps the parties make
decisions and come to an agreement by eliciting responses, helping with
interpretation of what is being said and what is happening in the exchanges
between them. I
think that some of my patients may not be capable of dealing with
mediation. Some are just
troublemakers and do not really have a case. Is this really worth my time? We have case management staff who spend
a significant amount of time explaining the case review aspects involved as
well as the ins and outs of the complaint process. A patient who is not ready
to mediate in good faith is likely to pass up mediation as an option. As far
as competence to participate in mediation is concerned, a complainant would
be encouraged to get a relative or friend to help if he/she is not capable of
participating. We also can provide a trained mediation advisor to assist
either party in dealing with the mediation process. What
does a mediation advisor do? Either party may bring a mediation
advisor to the session if agreed to by the other party. The role of the
mediation advisor is mainly to answer questions about the mediation process;
they do not advise either party about what to do, or how to do it. The advisor can also attend the mediation
for moral support. What
about the mediator, how can he/she mediate if he/she doesn’t have special
medical knowledge or know much about managed care? Remember that the mediator is not going
to decide how the matter should be settled.
The mediator will have received training to orient them to the
characteristics and the issues of the healthcare system. Besides, you, as a healthcare professional
will be there to bring in medical data and explanations in terms that a
layperson can understand. We also are
using a co-mediation model in which retired healthcare professionals,
including doctors, have volunteered and been trained to mediate. The professional mediator is experienced
in eliciting additional explanation as necessary and would serve as an
impartial spokesperson who would have the trust of both parties. Has
mediation been used before with any success between doctors and patients or
is this an experiment? Medicare is at the forefront of
utilizing mediation in the healthcare system. While mediation has a long
history of being used in various industries and situations, its use in
healthcare has been somewhat limited, though successful. In a number of studies of its actual
implementation, mediation has proved to have distinct advantages over the
traditional medical record review process.
Also, mediation has resulted in greater satisfaction, a sense of closure,
avoidance of litigation, and improved relationships between physicians and
patients. Are
mediation hearings recorded or is there a contemporaneous record
maintained? Mediation sessions are not recorded and
the notes of the mediators and parties are destroyed at the end of the
session. No record of any mediation details are kept on file. Could
I bring my attorney to the hearing? You may bring an attorney to the hearing
if all parties agree, but it is most important for the parties to talk with
each other, rather than through lawyers.
The attorney could be there with the understanding that their function
is for private consultation when necessary, not for them to argue a case. Can
a health plan representative attend the hearing even if the dispute is between
a member and a physician? It depends on the nature of the
beneficiary’s complaint. For example, if the complaint is specifically
against the physician, the physician could decide that, because some aspect
of their employment affects what the beneficiary is complaining about, he/she
would want a representative of the health plan to be there. Or they might
not. If the health plan felt it had a
stake in the situation, it could decide to become a party to participate in
mediation and participate fully as a party. Or it might offer to participate
in mediation with the complaining party separately about an issue or issues
that affected the health plan. Can
a physician send a representative to the hearing as opposed to attending in
person? If the complaining party agrees, a
physician could conceivably send a proxy with decision-making authority to be
present in the mediation hearing. The beneficiary, in some instances,
particularly when too disabled to participate in person, has the same option.
It is always preferable, however, for the parties themselves to be able to
communicate directly with each other in order to experience new understanding
that both can learn from as they solve their problems collaboratively. What
about insurance? Do I remain covered
if I am in mediation? Where mediation has been used, the
experience is that insurers sometimes recommend mediation. That is also true of attorneys who are
representing physicians. However, it is recommended that you check with your
insurance company to verify your situation. What
is the impact to professional liability? We do not know what the impact will be
at this time. However, the feedback
from representatives of malpractice insurers has been positive. Malpractice
insurance companies, as well as others in the healthcare industry, will be
watching the rollout of mediation and evaluating the results of our program. |
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For
more information contact: Northeast
Health Care Quality Foundation 1-800-772-0151
ext 165. This material was prepared
by CMRI under contract with the Centers for Medicare & Medicaid Services
(CMS). The contents do not necessarily reflect CMS policy. All or part of
this material may be reproduced without consent, if credit is given to CMRI. |
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Copyright © 2005 Northeast Health Care Quality Foundation, all rights
reserved |
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