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(June 2005) New reports from the Administrative Office of Pennsylvania Courts (AOPC) show the number of medical malpractice lawsuits filed in Pennsylvania has dropped since 2003, following the passage of the MCARE Act of 2002 with its legislative and judicial reforms.

However, the concern over rising malpractice rates hasn't gone away. Recent reports show that jury awards have increased. And there's been no noteworthy drop in the cost of medical liability insurance. Are there promising practices that may help improve the medical liability situation while improving patient safety? IssuesPA studied a recent report on mediation and the importance of communication in the health care setting.

What's the diagnosis?

Poor communication between patients and physicians - often driven by lack of training or a fear of legal action- is one factor driving patients or their families to file lawsuits. A new study shows that doctors and hospital officials fearful of lawsuits avoid candor - often leaving patients and relatives frustrated or angry - by stonewalling or offering only barebones explanations of errors. This lack of communication encourages patients or survivors to file lawsuits to get information as well as compensation.

The medical profession has recognized communication as a weak point among doctors. In 2004, a section on communication skills was added to medical licensing exams.

What's the treatment?

Communication training and face-to-face mediation. The report from the Project on Medical Liability in Pennsylvania, an independent, nonpartisan effort supported by The Pew Charitable Trusts, concluded improved communication - more candor, more face-to-face conversation, even a simple apology - may result in fewer lawsuits by creating a culture that supports open communication, fair outcomes for both patients and physicians, and improved patient safety. It recommends candid, meaningful disclosure by health professionals about medical errors - and mediation - to avoid costly lawsuits. The report, issued by the Demonstration Mediation Project, recommends four measures:

• Provide communication training to doctors and administrators.
• Create a team of communication experts within a hospital to help plan meaningful conversations with patients and relatives and to provide emotional support to health-care providers involved in errors.
• Offer legitimate apologies when appropriate.
• Use mediation sessions that bring patients or relatives together with health-care professionals within months of when the problem occurs.

At the crux of the recommendations lies mediation, a technique already practiced by a handful of hospitals in Pennsylvania, including the Drexel University College of Medicine in Philadelphia. In all cases, mediation is voluntary. The proceedings remain confidential. Nothing said can be submitted into evidence. And patients unhappy with the results retain the option to go to court.

This model is different than others because it focuses on early, interest-based mediation. The report documents programs in which health care professionals meet directly with the patient or family members to reach a settlement. With the face-to-face approach, the mediator helps both parties gain understanding, assess the strength of their positions, explore non-economic proposals and reach a settlement together. Both sides have the opportunity to ask questions and express feelings.

Without the need to gather "evidence," the session can occur within months of the error instead of years. Medical professionals hear the patients' and families' concerns and complaints. The recommended mediation - where both sides get together to reach a settlement - not only results in fair compensation for patients or families under a much quicker timeline, but it also bring changes in hospital procedures to improve safety, a result no court could order.

In other mediation models, the focus is only on financial issues, and the two sides spend little time talking to each other as the mediators shuttle from side to side. When money is the only focus, the mediation sessions occur long after the error to give each side a chance to prepare a case, and cases can take years to resolve.

In addition to mediation, the report also recommends brief training sessions to familiarize health professionals with the complexities of meaningful communication - and intensive training for physicians and other care-givers who will serve as disclosure consultants. During the sessions, they would learn to formulate the right questions, avoid defensiveness and express concern about the issues at the center of a patient's statements. These are techniques that tend to diffuse anger by making a person feel respected and understood.

And the results?

New reports are beginning to show the reforms of recent years may be starting to bear fruit. There have been a decreased number of medical malpractice filings. However, the data are far from conclusive. The issue of medical liability and patient safety shouldn't be put aside. Instead, health professionals, patient advocates and policy makers could use the momentum from the reforms already in place to move other initiatives to improve Pennsylvania's health care system.

Mediation and improved communication are only two ideas - two that are being tested in hospitals in Pennsylvania and throughout the nation.