Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement

Abstract

According to conventional theory, the tort liability system serves two objectives: compensating injured persons, and causing other persons to internalize the costs of their errors and thus to guard against them in the future. The system is driven by the energies of the claimant, whose self-interest in obtaining compensation is compatible with the larger social goal of reducing future risks. This coincidence of private and public objectives occurs both within the formal liability system and in the more frequent instances where the resolution of a claim is privately negotiated rather than publicly adjudicated—so long as the bargaining takes place, to steal a phrase, in the shadow of the law. There is good evidence that the tort liability system does not work that way in practice. And, to a considerable extent, those who are interested in satisfying either of the two objectives have gone their separate ways. Alternative dispute resolution procedures such as mediation have been developed and promoted as efficient techniques for resolving claims (the compensation objective), while quality improvement initiatives in health care have largely ignored the claims process as an avenue for effective error reduction. Ironically, devices such as the National Practitioner Data Bank that have attempted to facilitate the link between compensation and risk reduction are suspected by some of having exacerbated the difficulties in achieving more effective forms of claims resolution. Recent empirical studies have demonstrated in a very sturdy way that the predominant motivation of iatrogenically-injured claimants is not the need or desire for economic compensation. Rather, claimants are often simply at-