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Last year, there were walk-outs, sit-ins and protests. For those of us living in the 1960s and 1970s, it was d�j� vu all over again. But instead of bellbottoms and flowers, it was white coats and stethoscopes; and the cause was not the loss of life in Vietnam, but the loss of doctors (and health care and lives) in Pennsylvania. Many hospitals and doctors have responded to the skyrocketing costs of professional liability insurance (if you can get it at all) by blaming the “greedy” lawyers. Attorneys, on the other hand, have chalked it all up to incompetent doctors. They both forget that it is juries (other patients), not lawyers, that render verdicts and make the awards. And the prescriptions that physicians often recommend- namely limits or “caps” — treat the symptoms, not the cause. There are surely many issues that the Legislature, the governor and the Supreme Court can consider, and they may come to a solution. But at the Drexel University College of Medicine, we have recognized that the system is broken and needs to be fixed. Med mal cases require a different, creative response. The reason for this is that health care is almost uniquely a partnership of patient and doctor. The one constant in medical education and selection is that physicians choose medicine in order to help, to heal, to cure. No other service is as personal, or as intimate. The doctor shares the patient’s (and the families) hopes; and the doctor shares the patient’s (and the family’s) sorrows when the result is not as good as can be hoped. While as a legal matter it might be enough to explain all the risks, known complications and adverse consequences that are statistically probable, in medicine, hope and trust is what it is all about. Unfortunately, health care is not scripted as well as in the popular doctor shows from Marcus Welby to ER. Physicians are not infallible, and “bad things” or untoward results will occur. But the trust and hope do not need to be eroded. When bad things happen, doctors of good will always feel sorry, rush to say that they are sorry and very frequently accept fault when the result was something that had a chance to be avoided. After bad outcomes, we always review the cases together, as a group, several times — in “M&M” (morbidity and mortality) reviews, in departmental reviews, in quality committee (peer) reviews. We always look for something we could do better next time, some way of reducing the chance that the adverse outcome will recur. But the legal system does not share this value system. It does not respond to moral fault — the sense that there was something more or better the doctor could have done – but to legal fault, flunking the test of performance set by the profession. One of the unfortunate side effects of the insurance crisis is that it has forced doctors to go against their natural instincts and take instructions from their lawyers and insurance companies: “Do not have any further contact with the patient. Do not say anything to them. Whatever you say can and will be held against you in a court of law.” Since failure to cooperate can lead to denial of insurance, we submit, we separate, we terminate the intimacy with the patient that defined our relationship. Just when they need us the most, we walk away. Who can fault the patient and family for feeling abandoned? Who can blame the jury for slamming us with big verdicts when we deny all fault and point fingers back against our patients? (“I did explain everything to them, I did tell them that this was a known risk, I did not promise them anything, and they are lying when they say otherwise . . . “) And what doctor do you think would prefer to let a wound fester and go untreated for four years, as the lawyers exchange interrogatories and confirming letters? The emotional price to the physician, her family, and the physician’s attitude toward future patients (litigants) is quite high. In medicine, the best results are obtained by full and open discussions between patient and physician. Isn’t it obvious that the way to resolve medical disputes is to keep talking? We hope to get there by putting as many cases as we can into mediation. The model we are going to use — the Rush model so successfully used in Chicago but apparently nowhere else — relies upon the skills of expert plaintiffs’ and defendants’ lawyers working as co-mediators. The plaintiffs pick both the mediators, the defendants pay all the costs, and for the first time, in a totally confidential setting, the doctors can finally explain their actions and openly share with their patients their upset and pain at what happened. We are starting with cases that are scheduled for trial within the next six months – cases where the adverse event occurred four to five years ago. After those, we will move to another dozen, then another dozen, until we go through all of our pending cases. Our goal is to mediate and resolve as many problems as possible before they go to litigation. We would like to thank the several leading members of Philadelphia’s plaintiffs’ and defense bars who have reviewed for us the mediation agreement and the other materials we have developed for this program and gave us such helpful criticisms. We would also like to thank the attorneys who will be participating in our program, representing our co-defendants, the plaintiffs and us. This is a new idea, and since mediation is voluntary, it will not work without your willingness to give it a try. And finally, we want to thank Governor Edward G. Rendell and his Office of Health Care Reform, Administrative Judge James J. Fitzgerald III and Supervising Judge William J. Manfredi of the Philadelphia Court of Common Pleas, who have given this program their full support and pushed us to implement it faster than we would otherwise have thought we could. Unlike a typical malpractice case, this idea is going from germination to implementation to, hopefully, resolution in an expedient manner.

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