Mediation and Arbitration: The Use of Alternative Dispute Resolution (ADR) in Healthcare

Abstract

Medical malpractice has existed for many years and will continue to happen with the passage of time in the United States of America as in other parts of the world, due to human error or some medical negligence. The work of health professionals is to provide quality medical services by evaluating and treating them with the best possible care. Many of health professionals spend many years studying and training to practice their professions, especially doctors, and will still find demands for some medical negligence. In the following work, we will find descriptions of medical malpractices as well as the option of alternative dispute resolution and its methods. This type of resolution is an option to resolve a conflict through mediation or arbitration in order to minimize the costs and time of litigation between two parties. The aim of this article is to understand the term alternative resolution of disputes within the field of health and the benefits it can have for conflict resolution by replacing the traditional method of going to court. Also, the Scriptures are integrated as part of our Christian responsibility for the resolution of problems and conflicts. In the United States, this method could be used as part of conflict resolution techniques.

Introduction

For many years, health professionals have seen how techniques and treatments to improve the health of people in need of medical care has evolved. Policies, protocols, and standards for the care of patients in need of medical care have also been developed. The main objective of every health professional practicing his profession is to care for and serve sick individuals. Doctors in particular, have years of training to be able to practice their profession with safety and knowledge of the human body in every way. In conjunction with a series of theories, the doctors in their training carry out their clinical training to put into practice all their knowledge and skills both interpersonal and mechanical. These practices are vital for physicians to develop communication skills with their patients and to develop a way to treat patients in an appropriate way without harming them. This type of care should be applied to all health professionals who are in contact with patients, not just doctors. Even with many years of training for health professionals, events can occur where patients are harmed. In many cases they are accidents but in others, there may be some sort of oversight in some procedures that could have been avoided. Situations arise in which health professionals may make mistakes or deliberately injure a patient. The concept that can describe this type of situation is medical malpractice. The United States legal and health system has developed policies and protocols to condemn any act committed with the knowledge of the harm that might be caused to individuals or any negligence to patients.

ADR in Health Care System

Medical malpractice is described by Bal “as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” Medical malpractice is defined as any event where a patient or individual has any damage from the hospital in which he or she is located or by any health professional attending to him or her. These unfortunate situations are happening all over the country and thousands of medical malpractice suits are filed each year in the United States. If there is no desired or required medical care on the part of patients, there are measures that can be carried out and the errors in the care required by patients can be compensated for, but many of these are through legal processes. In an effort to solve these medical problems at the lowest and least costly level, many organizations now seek Alternative Dispute Resolution (ADR). There are indirect costs to the healthcare system in the form of defensive medicine, estimated at between $83 and $151 billion”. Those patients who are not satisfied with the results of some medical intervention or suspect that some professional made some mistake during some procedure can carry out some investigation and carry out their complaints to the court, but this does not mean that the health professional committed some medical malpractice. In order to be proven that a doctor or other health professional committed medical malpractice, there must be adequate research with professionals who have knowledge in the related field. According to Bal, there are four essential components that must be proven in order to confirm a medical malpractice situation, which include: “a professional duty owed to the patient; breach of such duty; injury caused by the breach; and resulting damages”.

Alternative dispute resolution refers to agreements between providers and patients to submit disputes over alleged malpractice to a third party other than a court. Proponents of this approach argue that it compensates victims faster, more equitably, and with lower transaction costs. When a medical error occurs, patients and their families desire three things: detailed explanations, a sincere apology, and assurances that steps will be taken to prevent recurrences. The ADR can help resolve some conflicts that arise over medical errors, but it is important that both parts, the plaintiff and the defendant, know the strengths and weaknesses of the ADR process and then determine whether it is the best option for both sides. According with Balcerzak & Leonhardt the Alternative Dispute Resolution “meets the needs of both patients and providers with the additional benefit of reducing costs, encouraging disclosure, and improving patient safety”.

Methods of alternative dispute resolution

One method of alternative dispute resolution is mediation. Sometimes, if an environment is created where the patient and the doctor can come to an agreement and discuss the event that has occurred, both sides but much more the patient could develop the ability to better understand how things happened from a professional perspective using appropriate vocabulary. On the other hand, the doctor was able to develop confidence and improve his practices in order to prevent future incidents and “allow physicians to explain what happened and apologize or express regret, creating opportunity for the rebuilding of patient-physician relationships”.

The use of mediation in certain cases would benefit the situation in the process because it would decrease the costs and both sides would save time in resolving the conflict. Many of the cases that are taken to court take too much time and people need to be prepared for the long trials, costs and have to be mentally prepared to appear in court. This method allows people who are involved in the situation or conflict to have the opportunity to express themselves in a healthier, passive, and calm way. Mediation is a negotiation facilitated by a neutral third-party mediator who provides an initial approach to resolving many types of conflicts. One of the benefits of mediation is that both parties can be heard as compared to a courtroom where there are lawyers, and judges, the atmosphere is tenser. Each party can discuss the points they think are most important to them and thus allow the other party to make its points. In other words, we can say that there is communication between the people involved, which is very important within the professional field of health. Lack of communication is cited as the primary reason patients sue providers. One of the weaknesses of this method could be that cases, where there was a violation of established protocols and policies, would lead to a more extensive and strict legal process where it would involve other areas of law enforcement. Moreover, mediation would not be successful if the parties never reached an agreement and would therefore need another type of litigation.

Another method of alternative dispute resolution is arbitration. Arbitration, on the other hand, is often an agreement predetermined by the provider, and who sign them are patients. In this agreement, the patient agrees to resolve any situation or dispute by arbitration. Arbitration manages to lower the litigation costs for both the suppliers and the doctor in the situation and most importantly could achieve the goal of granting a settlement to the plaintiff. One of the weaknesses that can be mentioned in this method is that cases are basically discussed by lawyers or an arbitrator, patients do not feel they have been given the importance of being heard and their questions have been answered.

Applying a Biblical Perspective

Proverbs 28:13 says “the one who conceals his sins will not prosper, but whoever confesses and renounces them will find mercy”. This verse tells us about man’s sin against God. If we look at it from the point of view of our society and the issue we are discussing we could apply it in a way that we understand that doing wrong to another person is not good and by recognizing it we can resolve any conflict that arises so that both parties have justice and the reassurance that they are doing good within any negative situation. The extra-judicial arbitration of family matters under Alternative Dispute Resolution (ADR) legislation reduces the caseload burden on the formal legal system, leaving it for more ‘serious’ matters, such as commercial disputes. Luke 17:3-4 proclaims, “If your brother sins, rebuke him, and if he repents, forgive him. And if he sins against you seven times in a day, and comes back to you seven times, saying, ‘I repent,’ you must forgive him”. As Christians working in the health system and recognizing the thousands of situations and conflicts that may arise, we must have the empathy to serve and care for patients, including caring for our co-workers and everyone with whom we are in contact. We must be ready to face any situation that arises in the best possible way. We all know that conflicts are and always will be, but it is in us as people who have the capacity to think and analyze things in resolving them in the best possible and just way.

Conclusion

Medical malpractice is real and very common in the day-to-day life of all health professionals. I’ve been working in the health field for a long time and I can see how all health professionals take great care of this type of problem, even though they have so many years of studies and know what they do, they are aware that mistakes exist and on the other hand and unfortunately, there are also people who do their work incorrectly which leads to conflicts. The traditional process of resolving conflicts in court is not always the best way to solve problems. After going to court takes a lot of time and money, it is also a tiring process that many do not wish to have. Alternative dispute resolution is a method that many people prefer because of the low cost and time savings as well as the more personal process. I understand that each conflict must be taken and resolved in the best possible way and for each case, there must be the best resolution depending on the type of conflict. There are many views on alternative dispute resolution. As Christian, and as health professionals, we must always look for the best way to resolve conflicts as long as both sides clarify the situation and benefit from it. Communication is very important so that there are no problems and from the beginning, it must be developed. Philippians 2:3-4 states, “Let nothing be done through selfish ambition or conceit, but in lowliness of mind let each esteem others better than himself. Let each of you look out not only for his own interests but also for the interests of others”. If these situations are worked out effectively, reducing cost and time, and compensating the people involved in the lawsuits, an appropriate solution could be found. Our patients deserve to be treated with respect and a high level of care. In establishing methods for resolving disputes through litigation, alternative dispute resolution should be an appropriate option.

References

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