Introduction
The medical liability system in the US has been facing various challenges over the years. Medical errors are some of the leading causes of morbidity and mortality in the US, which underscores the importance of the medical liability system in the country. According to Nussbaum (2017), close to half a million people die every year from preventable causes due to medical errors, which requires a robust legal framework for addressing and responding to these incidents.
The conventional tort system deals with such occurrences through medical malpractice claims, but this approach does not protect both the caregivers and patients as lawsuits are adversarial by nature. These problems necessitate the need for alternative dispute resolution (ADR) mechanisms to deliver corrective justice, which is a major shortcoming in the conventional tort system. This paper addresses the various legal, social, ethical, and biblical aspects of ADR that arise during dispute resolution to limit or eliminate litigation.
Legal Aspects
In ADR, the aim is to take a non-adversarial approach towards dispute resolution and it does not seek to prove negligence. As Nussbaum (2017) posits, “The purpose of this new law is to help patients learn about what went wrong, to enable providers to make improvements in healthcare delivery, and to allow the parties to discuss appropriate financial compensation without resorting to litigation and court” (p. 251).
As such, allows providers to disclose to patients about adverse medical events early enough through confidential communication between the involved parties. At the heart of ADR is the concept of mediation whereby the involved parties meet outside the conventional court system with discussions focusing on settlements by making informed decisions and have an out-of-court resolution of medical malpractice claims. The involved parties together with their lawyers take part in settlement discussions being moderated by a neutral third party. The parties decide on the terms of the agreement and each chooses to be bound by the same. However, due to the confidentiality surrounding mediation, the contents of discussions cannot be admissible in future court proceedings.
Statutes that guide medical malpractice ADR sometimes have provisions to encourage settlements and avert litigation. For instance, some require mediation before filing a claim in court, while others allow the process to take place after filing a case but before the start of formal discovery. Mediators could thus suggest a settlement or advise on the legal positions of the involved parties. However, mediators lack the legal authority to compel parties to make certain decisions or prevent them from proceeding with litigation. As such, ADR for the settlement of medical malpractice claims with the minimal involvement of the court system.
Social Aspects
ADR is framed with the understanding that healthcare is a social system. This form of a system is highly complex and adaptive with fluid linkages and conciliatory rules. In addition, the system is constantly changing with an evolving environment to address emerging patient needs. As a social system, healthcare deals with volumes of data with many feedback loops and limited access to other people’s information. Consequently, this system is more prone to errors as compared to other forms of social structures. Another social attribute of healthcare, which underscores the need for ADR, is the deeply entrenched inequalities and imbalances in terms of power, knowledge, and control.
Additionally, the system is rich in cultural diversities where the meaning of health, and the involved process in delivering the same, could be interpreted differently by the various stakeholders, especially patients. ADR could thus be used to address the various forms of medical malpractice by focusing on the underlying social issues to deliver satisfactory results to all involved parties.
However, from a social perspective, it might become a challenge to select who gets to sit on the ADR panel. In a globalized world where people from different backgrounds meet, live, and work together, selecting an impartial panel to mediate could be a challenge. The language barrier is also another major social aspect surrounding ADR, which is closely tied to the multicultural environment within which care provision occurs. Therefore, ADR has to be negotiated and conceptualized within a social framework taking care of all possible issues that could arise in the process.
Ethical Aspects
Under the conventional tort system, the boundaries of ethical behavior during litigation are clearly defined. For instance, the involved parties cannot lie under oath, tamper with witnesses, or destroy evidence. However, the arbitration environment is characterized by an “anything goes” atmosphere, which raises ethical concerns about those involved in the process, especially the mediators. Menkel-Meadow (2017) posits that adversarial ethics “are inadequate for many lawyer roles, including those of mediator, arbitrator, advisor, and facilitator, and they distort the other roles lawyers might play when they conduct themselves as problem-solving professionals” (p. 389). Therefore, the ambivalence surrounding how to evaluate the mediators’ ethical standings could be problematic for the involved parties, which makes it a major issue that could derail ADR.
Additionally, without judicial oversight, the ethical standards of arbitration are blurred. For instance, the involved parties do not have any form of incentive, to tell the truth. According to Amirthalingam (2017), doctors either “settle claims with a non-disclosure agreement, or if they do not believe they are personally at fault, take their chances with litigation where they have a high chance of successfully defending the action” (p. 683).
Therefore, the issue of ethics becomes situational with each side seeking to present information or take recourse that favors a favorable outcome. Similarly, some cases involve sensitive information about patients and without proper mechanisms to maintain the privacy of such data during the ADR process, the ethical issue of privacy and confidentiality arises. The underlying question is whether a neutral third party, acting without taking any form of oath, could be trusted with such sensitive information. This lack of clear guidelines could potentially contribute to withholding information leading to unfavorable outcomes.
Biblical Aspects
The underlying concepts of ADR borrow heavily from the biblical principles of forgiveness and reconciliation. The bible is clear on how disputes should be handled in their formative stages before getting to court for litigation. In Matthew 5:25, Jesus advises, “Come to terms quickly with your accuser while you are going with him to court, lest your accuser hands you over to the judge, and the judge to the guard, and you be put in prison” (New International Version, 2011).
Therefore, if the warring parties believe in the Bible, they could be persuaded to obey God’s commands and behave in a way that would please Him through reconciliation. Jesus gives another story in Matthew 5: 23-24 where He says that if a worshiper brings a gift to the altar and remembers he has a dispute with his brother, he should leave the gift at the altar and go back and reconcile with the brother before returning to the altar to continue with the sacrifice.
The Biblical approach to ADR is based on a sequential three-step process of dealing with scenarios where one party feels offended by the other as highlighted in Mathew 15: 17-18. The first step is to talk to the involved person, if this fails a witness should be called in, and finally after the failure of the second step, the matter should be escalated to church representatives. Therefore, ADR has strong Biblical foundations and if followed carefully, the Bible could offer the best model for ADR.
For instance, from a Biblical standpoint, the ethical problems associated with ADR could be addressed comprehensively because the Bible does not condone lying or pursuing self-serving outcomes. In what Henry et al. (2001) refer to as the prayer of Christina mediation, Saint Francis said, “Lord, make me an instrument of your peace; where there is hatred, let me sow love; where there is injury, pardon” (p. 1006). This argument prayer summarizes the Biblical aspects of ADR in resolving medical malpractices.
Example of a Case
The Spiegel v Goldfarb (2009) litigation case will be used as an example for this section. Dr. Goldfarb ordered various blood tests to determine what was ailing his patient, Spiegel, and specifically rule out the possibility of having endocarditis. Previously, the patient had a case of endocarditis as a result of infection by Streptococcus viridans bacteria. The initial laboratory results indicated that the patient did not have any form of bacterial infection. Therefore, without further tests, Dr. Goldfarb concluded that his patient had a viral infection, and thus he did not prescribe antibiotics and concluded that Spiegel did not require immediate hospitalization.
However, after a few days, the patient was back to the hospital because his condition had not improved. The doctor requested further blood tests, which for a second time, showed no bacterial infection. The third report after a few days indicated that the patient had enterococci infection, but it turned out to be a mistake from the laboratory. Ultimately, the lab issued another report showing that Spiegel had S. viridans infection.
However, by this time, the patient’s health had deteriorated significantly, after being diagnosed with endocarditis, he was hospitalized where he underwent open-heart surgery and in the process suffered a stroke with permanent debilitating injuries. During the disposition, it was established that the technicians in the laboratory committed medical malpractice by wrongly analyzing the blood tests, which formed an integral part of Spiegel’s diagnosis and treatment.
Conclusion
ADR in solving medical malpractices minimizes cases of litigation by offering the plaintiffs an alternative way of addressing their disputes. Mediation is the guiding principle in ADR whereby a settlement is negotiated between the warring sides with the help of a neutral third party. However, various legal, social, ethical, and Biblical aspects surround the concept of ADR in medical malpractice. However, despite its shortcomings, ADR is important in healthcare provision given the huge numbers of medical and procedural errors that occur during the process of care delivery to patients like the example presented in this paper. Additionally, ADR has strong Biblical foundations as the Bible clearly outlines the various processes that should be followed when settling a dispute between two parties.
References
Afrassiab, Z. (2019). Why mediation & sorry make sense: Apology statutes as a catalyst for change in medical malpractice. Journal of Dispute Resolution, 2(12), 197-212.
Amirthalingam, K. (2017). Medical dispute resolution, patient safety and the doctor-patient relationship. Singapore Medical Journal, 58(12), 681–684.
Henry, J. F., Allegretti, J., Bush, R. A. B., & Cobb, D. (2001). Dialogue on the practice of law and spiritual values. Fordham Urban Law Journal, 28(4), 991-1087.
Menkel-Meadow, C. (2017). The evolving complexity of dispute resolution ethics. Georgetown Journal of Legal Ethics, 30, 389-401.
New International Version Bible. (2011). Zondervan.
Nussbaum, L. (2017). Trial and Error: Legislating ADR for medical malpractice reform. Maryland Law Review, 76(2), 247-308.
Spiegel v Goldfarb, 66 A.D.3d 873 (2009). Web.