by Holly Hayes
For an article titled “Medical Malpractice Reform: The Role of Alternative Dispute Resolution” in the May 2011 Clinical Orthopaedics and Related Research, David H. Sohn JD, MD, B. Sonny Bal MD, JD, MBA “performed MEDLINE, PubMed, and Google Scholar searches with key words ‘medical malpractice’, ‘ADR’, and ‘alternative dispute resolution’ to obtain public policy studies, law review articles, case analyses, ADR surveys, and healthcare review articles” to better understand the role of ADR in the healthcare setting.
Their research indicates:
Early apology and disclosure programs report 50% to 67% success in avoiding litigation as well as substantial reductions in the amount paid per claim. Mediation boasts 75% to 90% success in avoiding litigation, cost savings of $50,000 per claim, and 90% satisfaction rates among both plaintiffs and defendants. Arbitration is viewed as less satisfying and less efficient than mediation but still more time- and cost-effective than litigation. The current legal environment is favorable to ADR with recent court decisions upholding pretreatment arbitration clauses. The main obstacle to ADR is the mandatory reporting requirement of the National Practitioner Data Bank (NPDB).
The National Practitioner Data Bank (NPDB) is “intended to improve the quality of health care by encouraging State licensing boards, hospitals, professional societies, and other health care organizations to identify and discipline those who engage in unprofessional behavior; to report medical malpractice payments; and to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from State to State without disclosure or discovery of previous medical malpractice payment and adverse action history. Adverse actions can involve licensure, clinical privileges, professional society membership, and exclusions from Medicare and Medicaid”.
Drs. Sohn and Bal concluded that ADR has the potential to reduce costs while increasing both patient and provider satisfaction. They report that easing NPDB reporting requirements could result to wider acceptance and use of ADR among physicians.
Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.
