May 5, 2004
Kathleen Wilkinson welcomed everyone to the meeting and briefly discussed the minutes from the prior meeting and then, with Robert Szostak, introduced the speakers.
Mr. Welge and Ms. Ruddell proved the members of the committee with an extensive presentation on mediation in medical malpractice cases in the Commonwealth of PA. The speakers discussed new PA Rule of Civil Procedure 1042.21 which allows a health care provider to request mediation, In connection with Rule 1042.21, the speakers addressed a number of topics, including the following:
a. Genesis of Rule 1042.21
As outlined by Ms. Ruddell, the issue of mediation was an outgrowth of Governor Rendells task force on the issue of medical malpractice. Thereafter, the PA Supreme Court appointed a task force to consider all options in connection with the issue of mediation,
b. Supreme Court Task Force
In connection with the Supreme Courts task force, there were a number of keep concepts which were agreed upon, namely:
(1) Voluntary Program-mediation would not be mandatory. Rather, there would be an attempt to encourage institutions to proceed with mediation;
(2) Mediation would not be uniform throughout the Commonwealth. Rather, mediation would be localized in order that it would be suited to the individual counties: and
(3) Rush Model--one mediation model to be considered was the Rush Model which was used at the Rush Hospital in Illinois and is a co-mediation approach. The Rush Model, however, was not agreed upon as the sole model for mediation.
c. Current Status of, and Legal Issues Concerning, Mediation in PA
As outlined by Mr. Welge, PA lags behind many other states in the area of mediation. For example, (1) NY expects to mediate 10,000 cases in a year; (2) MD courts routinely refer matter to mediation; and (3) in L.A. County, CA, 28,000 cases were referred to mediation. Mr. Welge also identified a series of issues affecting mediation such as the timing of the mediation; availability, selection, and training of qualified mediators; and, the willingness of the parities to trust the mediators.
Also, discussed by M. Ruddell, one of the issues in the context of medical malpractice mediation is focusing on why individuals bring suit. According to Ms, Ruddell, there is much research on the issue of medical liability and suit is often initiated due to poor communication between the health care provider and the victim and/or the victims family. As such, suits often arise to: (1) learn what happened: (2) seek and acknowledgement and/or apology for what happened; and (3) prevent a recurrence of the incident. Mediation, therefore, is unique in that it allows parties to talk to each other and often reach a resolution with non-monetary remedies.
d. Differences Between Mediation and Settlement Conferences
Mr. Welge then proceeded to outline some of the significant differences between mediation and settlement conferences, including:
--the availability of more time to resolve the matter in mediation;
--actual involvement by the parties in mediation;
--greater role for the facilitator beyond evaluation of the case;
--focus on the issue of ongoing relationships;
--focus on the surface issues as well as underlying issues;
--opportunity for more creative solutions; and
--a greater role for the attorney beyond just advocacy.
e. Rule 1042.21
Mr. Welge then discussed the substance of Rule 1042.21, in particular, that it allows for mediation prior to the exchange of expert reports. Although the formulation of the rule was the Rush Model, the role does not mandate a particular form of mediation. As explained by Mr. Welge, the rule was deliberately drafted to leave open the form of mediation.
f. General Discussion
In the course of the presentation, Members of the Committee raised a series of issues including: when mediation has been most successful (after significant discovery or when the insurance carrier participates); the need for physician consent to any settlement; reporting problems; M-Care issues; and mediation as giving a party a potential unfair advantage by revealing strategies and/or key facts. There was a vigorous discussion of the benefits and detriments of mediation. Following the discussion, the meeting was adjourned at approximately 1:25 p.m.
The next meeting will be held Wednesday, June 2 at the usual location at the Bar Association.
Gregg W. Mackuse