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The Drexel University College of Medicine’s new mediation program for medical malpractice cases is modeled after one developed by a Chicago hospital years ago that employs co-mediators who are also active and experienced med mal litigators — one representing the plaintiff’s perspective and the other the defense. The Drexel project, like the Rush model named for Rush-St. Luke’s-Presbyterian Medical Center in Chicago, offers the option of mediation to some plaintiffs in the hopes of resolving the differences among litigants more quickly and with less strain on the emotions, pocketbooks and schedules of all involved. The Rendell administration, the Pennsylvania Supreme Court and Philadelphia court officials have all encouraged medical malpractice litigants to engage in mediation in an effort to reduce the number of lawsuits filed — particularly in Philadelphia where hefty jury verdicts are not uncommon. The Supreme Court’s task force on medical malpractice has also considered a rule requiring mediation in such cases in all 67 counties. Drexel is working with Health Care Resolutions, a Conshohocken mediation services company, which has recruited and trained a group of Philadelphia-area mediators with litigation experience specifically in the medical malpractice arena. “We’re trying to get the pre-eminent medical malpractice lawyers,” said Carl Tobey Oxholm, general counsel at the College of Medicine. “So for people who sue one of our doctors, we can say, In our mediation program we’re giving you the choice of the best mediators. Why? Because they’re going to know your case better than you would.” When a mediator isn’t intimately familiar with the language, rules and theories of med mal law, it’s sometimes harder for him or her to communicate with the parties, Oxholm said. “It struck me that med mal is such a specialized area now that you really got to know what you’re talking about,” Oxholm said. Oxholm expects to send at least 20 med mal cases to HCR this year for mediation, he said. The first dozen have already been selected — mostly cases scheduled for trial within the next two months. Drexel’s attorneys approach the plaintiff and the hospital’s co-defendants to see if they will agree to mediation. Some of Drexel’s co-defendants have been resistant, Oxholm said, but, thus far, it has been possible to persuade them to at least attend a mediation session. “What’s the harm in discussion?” he said. “This is new for a lot of people.” The Drexel mediation is non-binding and usually takes a full day, said Jane Ruddell, HCR’s president. The parties can either chose to have a professional neutral mediator or co-mediators who are medical malpractice practitioners, she said. If they choose the co-mediator option, the plaintiff selects one mediator from the list of plaintiffs’ bar attorneys and one from the defense bar list, Oxholm explained. The co-defendants split the mediation cost, which depends on how many hours the mediators spend preparing for the session and how long the session itself lasts. The mediators are paid $325 an hour, so three hours of preparation for a seven-hour session for two mediators would cost nearly $7,000. One of the available mediators listed as for the plaintiffs’ bar is Gerald A. McHugh Jr. of Litvin Blumberg Matusow & Young. The Rush model gives both parties comfort in that the plaintiff knows he chose the co-mediators and the defendant knows someone is representing his perspective, McHugh said. “The benefit of mediation is that you can get a much quicker resolution of a case with much less expense and also less acrimony, for lack of a better word,” McHugh said. “If the health care provider makes clear to the patient that they’re willing to take responsibility for an injury, that has a lot of value in its own right. There’s a real psychological benefit to this for the patient.” Another mediator, Norristown attorney Andrew Braunfeld of Masterson Braunfeld & Milner, said it’s significant that hospital systems and doctors appear to be opening up to more mediation. “The important thing is that they’re thinking outside of the box,” said Braunfeld, who spent many years defending hospitals and doctors in medical malpractice cases. “They’re looking for a more economic way and expeditious way of resolving these cases.” Drexel is selecting cases that are schedule for trial in the next several months, but Oxholm said he hopes to begin the mediation of med mal cases soon after or even before a complaint is filed. This would be a departure from the Rush model, Oxholm noted, but “what’s the benefit of hanging around for two years waiting for trial.” Also, if mediation is successful and a settlement is reached before the plaintiff submits a written demand, Oxholm said, a doctor can avoid having the settlement reported to the National Practitioner Databank (to which hospitals and physicians are supposed to report med mal verdicts and settlements). “We can avoid the issue of a doctor having to give a public acknowledgment of doing something wrong when he doesn’t believe he did,” Oxholm said. Ruddell also noted that mediation — as opposed to formal settlement conferences — gives the parties a chance to acknowledge the “humanity of the participants” through creative remedies that you won’t get in a courtroom. “Like an express acknowledgment of responsibility or an apology,” Ruddell explained. “We really try to emphasize that human element and try to reach a solution that’s personal, as well as addressing the economic and financial needs of the patient.”

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