If I Settle Now....It Will Mean that I Killed Her
from "Settle It Now Negotiation Blog" by Victoria Pynchon
      

Anatomy of a Failed Medical Malpractice Mediation

The September 27 decision of the California Court of Appeal in Simmons v. Lida Ghaderi, affirmed the enforcement of a settlement agreement based upon documents prepared for and during a mediation, as well as on a sworn declaration by the mediator himself.

The convoluted rationale supporting the majority's opinion in the face of a strongly worded and meticulously reasoned dissent, is an understandable reaction to the hard facts which so often result in bad law.

Before addressing the purely legal problem raised by the opinion, however, I'd like to talk about the mediation's failure to produce a durable resolution. Because I was not present, I cannot (and do not) criticize anything that was or was not done during the Simmons mediation. I use the story only as a jumping off point to discuss an important on-going problem in the mediation of litigated cases -- the exclusion of the disputants from the mediation process itself.

Meaning Making in Settlement Negotiations

Though all legal proceedings begin with stories, one of the primary purposes of the law is to resolve conflicts rationally and predictably. That requires lawyers to strip the story to its bones so that the "facts" will fit into the relatively fixed and rigid "causes of action" for which the law will provide a remedy.

By the time these stripped down legal stories reach the mediator, they have been so reduced and reconstructed that the parties often barely recognize them. Like the jury consultant who is hired to dress up the litigation story for trial, the mediator helps the parties breathe life back into the narrative so that the people problem at the heart of the litigation can be resolved by those whose conflict it actually is.

Only the parties can restore nuance to this skeletal legal tale. Only they can raise the facts deemed "irrelevant" to the legal action but critical to its voluntary resolution. Only by sharing their competing stories in all their dimensionality can the parties' deepen one another's understanding of the real interests at stake, many of which will create impasse if not addressed. The mediator can find and address the "pain" and "release" points necessary to negotiate the money issues only if the parties are free to speak and respectfully heard.

Though we're taught these lessons in mediation school, we generally don't really learn them until we've had lots of experience. Sometimes, however, the required experience comes in a single case early in our careers, as did the lesson of the mediation described below.

The Case of the Misprescribed Drug

The small conference room on the fifth floor of downtown Superior courthouse was filled to overflowing. The doctor and his lawyer were sitting farthest from me at the end of the table. To my right were three attorneys for the physician's practice group; to my left, two attorneys and their hospital client; and, in a corner of the room, pushed back from the table, two insurance company representatives and their outside counsel.

I had just communicated plaintiffs' demand -- the full $250,000 in non-economic damages allowed by law. There were no lost earnings or recoverable medical expenses, so $250,000 was pretty much everything Plaintiffs could hope to recover at trial. Whatever the merits of the claim itself, the "facts" were not good.

One of the plaintiffs was a six-year old child who had been adopted by the 60 year old heart patient the previous year. Before that, the child had been in and out of foster homes. Since his mother's death, he'd been obsessively watching evangelical Christian programs on television because he'd watched these programs with her. You don't put this stuff in your legal briefs. You just tell it to the jury. No one wanted to actually try this case downtown.

Everyone in the room but myself and the doctor was talking at once. Small groups of lawyers huddled together whispering, before raising their heads and voices to ask questions of the others. No one had yet suggested that the parties find a way to divide responsibility for the full 250 among themselves, but it certainly seemed to be moving quickly in that direction.

When I glanced over at the doctor, he was shaking his head "no" ever so slightly. When our eyes met, the din in the room muffled and everyone but the doctor blurred into soft focus.

"I Can't Pay That"

"I can't pay that," the doctor said quietly, almost too quietly to be heard. Certainly no one else in the room heard him say it.

I leaned forward to make sure I could hear him clearly. "Why is that?"

"If I pay that," he said, still sotto voce, "it will mean that I killed her."

The conversational roar continued around us as I struggled for a response. I couldn't break eye contact. Nor could I begin to imagine anything useful I could possibly say.

No matter how much money was at stake in the commercial cases I'd handled during my twenty-five years as a litigator, I'd never had to worry about actually killing my clients.

At a complete loss for words, I finally simply admitted I didn't know what to say. "That's an incredibly profound statement. Can you say more about that?"

What followed was the first frank discussion I ever had with a physician about the meaning of litigation. We talked about his relationship with his patients; the shock of suit; the way the litigation seemed to take on a life of its own without him; his sense of helplessness, futility and betrayal.

And at the bottom of all this was the fear that he might have to acknowledge that which only doctors, nurses and possibly death row lawyers could possibly understand -- the potential that the awesome power bestowed by his education, training, experience and licensure may have resulted in someone's death.

The Meaning of Trial or Settlement

In response to this powerful set of disclosures, I explained the legal system in the way my trial practice professor had explained it to me more than a quarter century before -- that trial isn't about finding the truth or doing justice. It's just one of the ways to resolve a dispute. And mediation is its alternative.

Then we talked about the many meanings settlement could have, including a single simple mistake made by a highly trained, competent and caring doctor. Errors arising from our common human fallibility. Errors we purchase insurance to remedy.

Instead of further traumatizing the physician with my own version of the boogey man of trial, I solicited his own trial fears and concerns, including the potential for an adverse verdict. Remembering Professor Joe Folger's dictum that mediation is all about "choice and voice," I reminded the doctor that the choice to settle was his. I would not try to beat a settlement out of him.

After listening to the whole story and assuring myself that the physician had told me everything he wanted to, I was able to honestly reassure him that even an adverse jury verdict could not change what he knew to be true about the quality of his treatment. Treatment that included the many unrecorded private conversations he'd had with his patient about the importance of regularly taking her medication. By the end of our conversation, I believe he was ready to settle because he understood the settlement would not trump his own experience of how much he'd cared; how hard he'd tried; how diligent he'd been; and, how much his patient had wished to die.

I always have this discussion in one form or another whenever I mediate a malpractice action.

You will never understand," a surgeon once said to me in separate caucus. "The operating room is my church."

Back to Simmons v. Ghaderi

We don't, of course, understand much of anything about the case of Simmons v. Ghaderi. We know it is a wrongful death medical malpractice action. If we read the footnotes we learn that Plaintiffs' complaint alleged that the physician removed the patient from dialysis without permission.

Important to the legal decision was the doctor's pre-mediation signed consent to settle the lawsuit for $125,000. Critical to the failure of the mediation was the following:

"During settlement discussions, Dr. Ghaderi waited in another room with [her Cumis counsel]. Eventually [the insurance carrier] advised [the mediator] to offer plaintiffs $125,000 to settle the matter in exchange for a dismissal . . . Plaintiffs accepted the offer. While [the mediator] prepared a document reflecting the settlement agreement for the parties to sign, [the insurance claims representative] went to the other room to inform [the doctor and her attorney] that a settlement had been reached. When she was advised of the settlement, Dr. Ghaderi said 'Good, because I am revoking my consent.' . . . Shortly thereafter, Dr. Ghaderi left the building." (emphasis added).

"Processing" Resolution

A couple of years ago, I interviewed the founders of the transformative mediation paradigm, Professors Joe Folger and Baruch Bush. "Transformative" was a term that seemed too touchy-feely to me, particularly since I was developing my practice as a commercial mediator. I'd taken Joe Folger's course in mediation at the Straus Institute, though, and I liked a lot of what he said about party participation in mediation.

"Voice and choice," Joe said, "is what clients are missing and [what] transformative mediation provides." (You can read the interview by clicking here). "When client participation is shut down completely, not only is mediation not satisfying but it offers no real alternative to a client who has come to the mediation as a way of extricating himself from the highly controlled -- but inherently unpredictable and dangerous -- court setting."

Professor Bush stressed that more durable agreements arise from mediations conducted with full party participation because greater certainty about the value of the settlement is created in an atmosphere where "richer, more textured information is exchanged."

Full party participation, concluded Folger, "remov[es] barriers to settlement that restrict information and cloud decision-making[;] supports the emergence of settlements built and valued by the parties themselves[;] allows for a humanizing rather than demonizing negotiation process [that is] less stressful and personally repugnant for both clients and lawyers[;] contributes to greater client satisfaction[;] . . . [and] avoids . . . the exercise of excessive pressure" that can result in deal-busting behavior such as that which occurred in the Simmons case.

The Failure of Voice and Choice in the Simmons Mediation

Joe Folger's class didn't make me a full-fledged "transformative" mediator (and Joe says if you're not full-fledged you're not transformative at all). Still, I will never forget the lessons I learned from him and Professor Bush about the necessity of party participation in mediation. Master mediator Richard Millen is fond of saying, "people don't have legal problems. Only lawyers have legal problems. People have people problems." And there's not much we can say in opposition to that.

Clearly, Dr. Ghaderi's people problem was not addressed, let alone resolved, by the mediation subject of the Simmons v. Ghaderi litigation. And though I understand the fear that a physician's hard won consent to settlement might be blown if she is allowed to participate fully in settlement discussions, it could hardly be derailed any worse than it was here -- spawning subsequent motion, trial and appellate practice, with an existing potential for Supreme Court review.

I can't help but think that if Dr. Ghaderi was willing to settle the case for $125,000 before the mediation, she would have been willing to settle it for $125,000 on the day of the mediation if only she'd been allowed to participate. Why did she dig in her heels and refuse? No one knows. That's the point. But three is always a reason.

Maybe Dr. Ghaderi's reason was something like the one expressed by the doctor in the misprescribed medication case. Maybe she withdrew her consent because trust and respect in every doctor-patient relationship goes both ways. And exclusion from the process of resolving the doctor's problem may well have made her feel too disrespected to allow the settlement process to run its course without her.

Doctors, like lawyers, lie in bed awake at night worrying about their clients. They invest enormous effort, time and energy in taking care of the people who have put their lives into the doctor's hands. I have never met a physician sued by a patient who has not expressed a sense of betrayal. "Why didn't they come and talk to me?" the doctor often asks during the mediation. "I could have explained. I've been their family physician for 35 years."

We attorneys have been trained to protect our charges by silencing their natural tendency to explain; to apologize; to resolve. And it is important that we do so during legal proceedings where an untutored comment can cause more harm than our clients could know. The courtroom is our church or temple or mosque.

Mediation, however, temporarily suspends the legal consequences of candor. Mediation allows the parties with the "people problem" to once more bring that problem to the table in all of its complexity and ambiguity. Mediation time is the time during which we allow the parties to express their anger; their fear; their frustration; their confusion; their ambivalence; their regret. That is why the mediation privilege is so important -- more important than getting the supposed "right" result in the litigation. Which is, after all, not about the truth, but about resolution. Of the people problem.

In my next post, I'll discuss the legal decision itself, which I believe sets a dangerous precedent for the continued strict construction of the mediation privilege laws.

About The Author

Victoria Pynchon: Judicate West Panelist (www.adjudicateinc.com) 25 years complex commercial litigation and trial experience; instructor, National Institute for Trial Advocacy and Anderson School of Business, U.C.L.A. Entrepreneurship Institute (Summer 2006 - Negotiation Seminar); J.D. U.C. Davis, Order of the Coif; LLM. Straus Institute for Dispute Resolution; Federal District and Superior Court Panelist; Extensive Co-Mediation Experience with Judges Alexander Williams, III and Victoria Chaney of the L.A. Superior and L.A. Complex Litigation Courts, respectively. For full profile see http://www.settlenow.com.  See her mediation blog "Settle It Now Negotiation Blog" at http://settleitnow.blogspot.com/.

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