Summary
In addition to the ethical and educational benefits, the cost savings resulting from straight talk with patients and their families that avoids litigation can be extraordinary. For health care institutions considering this approach -- as they should -- both the effectiveness and the savings may best be achieved through implementation of a formal Mediation/ADR program.
Analysis
As opposed to ad hoc apologies, a structured program has several potential advantages. First, adoption of an ADR program may help encourage physician participation and change the culture of the institution. Second, it will afford patients a place to go (rather than or in addition to the attorneys) to air their grievances. Third, in addition to the intrinsic benefits of mediation in assisting parties to resolve disputes, apologies-like all other statements in the context of "settlement" discussions--will be inadmissible in court. There is substantial literature discussing how and why mediation can achieve settlements where bilateral negotiations would fail. In addition, assured confidentiality, will further promote participation. Fourth, patients treated fairly in mediation may be more likely to agree to arbitration or other cost saving methods for resolving dispute if mediation proves unsuccessful.
Healthcare Institutions, moreover, may want to consider requiring patients to participate in ADR as a condition of filing suit. Such agreements are generally upheld by the courts, so long as the required procedures meet basic fairness requirements. Mandated ADR--again, if fairly and properly structured--can achieve the benefits described above while reducing uncertainty and transactions costs that may be associated with purely optional systems.
