Mediation for medical malpractice actions: an efficient approach to the law and veterinary care

doi:10.4236/ojas.2011.12008

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Vol.1, No.2, 61-64 (2011) Open Journal of Animal Sciences

doi:10.4236/ojas.2011.12008

Mediation for medical malpractice actions: an efficient

approach to the law and veterinary care

Valeria Quartarone, Maria Russo, Alessandra Fazio, Annamaria Passantino*

Department of Veterinary Public Health, Faculty of Veterinary Medicine, University of Messina, Polo Universitario Annunziata,

Messina, Italy; *Corresponding author: passanna@unime.it

Received 24 May 2011, revised 27 May 2011, accepted 20 June 2011.

ABSTRACT

Veterinarians today face an increased risk for

malpractice claims in view of increased client

awareness of the benefits of the human-animal

bond and advances in preventive and special-

ized veterinary medicine. An important problem

with medical malpractice litigation is the man-

ner in which malpractice claims are resolved. In

several countries, thousands of claims have

been successfully resolved via Alternative Dis-

pute Resolution processes such as mediation,

conciliation and arbitration. In medical media-

tion, health care providers, patients/animal

owners, families, clergy and attorneys partici-

pate directly in an informal, usually voluntary,

dispute resolution process that can lead to for

unique and promising approaches to resolving

conflicts. Recently in Italy framew ork legislation

addressing mediation has been introduced and

it is also used to resolve medical malpractice

disputes. Given that in Italy medical mediation

is formally a new concept and is still evolving,

an examination is made. The importance of

“mediation” for veterinarians’ civil liability will

be evaluated, underlining how it could become

an important instrument in speeding up the re-

solution of court actions concerning medical

malpractice.

Keywords: Mediation; Alternative Dispute

Resolution; Veterinarian; Malpractice; Legislation

1. INTRODUCTION

Medical malpractice occurs when a patient suffers

harm, injury, loss or damage to function by a physician,

veterinarian, dentist, pharmacist, therapist or any other

medical care provider who fails to competently perform

his or her medical duties by providing improper, un-

skilled, or negligent treatment to a patient.

Medical negligence can include a failure to diagnose,

improper treatment, and failure to warn a patient of

known risks. In cases of vicarious liability or d irect cor-

porate negligence, claims may also be brought against

hospitals, clinics, managed care organizations or medical

corporations for the mis takes of their employees.

Medical malpractice law is highly regulated by a com-

plex body of rules, which vary from country to country.

These rules include how soon a medical malpractice

claim must be filed; whether the patient must submit the

claim to a malpractice review panel before filing the

claim in court; whether notice of the malpractice claim

must be given to the doctor before filing; what qualifica-

tions are required to be deemed an expert medical wit-

ness for the purposes of testifying; and what statutory

caps exist on the amount of compensation that can be

awarded.

Professional negligence is the predominant theory of

liability concerning allegations of medical malpractice.

A person who alleges negligent medical malpractice

must prove all four elements of the tort of negligence: 1)

a physician/veterinarian-patient/animal owner relation-

ship existed, so a duty of care was owed by the physi-

cian/veterinarian; 2) the physician/veterinarian violated

the applicable standard of care, giving proof of negli-

gence, generally demonstrated by expert testimony or

obvious errors;3) the physician’s negligence caused the

injury; and iv) the person/animal suffered a compensable

injury, meaning that the injury led to specific damages.

The burden of proving these elements is on the plaintiff;

the healthcare provider is the defendant.

Lawsuits within the healthcare system reduce the

quality of patient care and medical malpractice litiga-

tions can be extremely expensive and unsatisfactory for

every party involved, so it is important to find ways of

saving money and time.

Access to justice, in its widest sense of the effective

resolution of disputes whether through court-based liti-

V. Quartarone et al. / Open Journal of Animal Sciences 1 (2011) 61-64

gation or alternative dispute resolution (ADR) [1] proc-

esses, is an essential aspect of ensuring the realisation of

the fundamental rights recognised and given protection

by the EU [2,3].

The modern civil justice system offers various ap-

proaches and options for dispute resolution thus pro-

moting access to justice.

Citizens should be empowered to find a satisfactory

solution to their problem which includes the option of a

court-based litigation but as part of a wider menu of

choices.

While the courts will always maintain a central place

in the civil justice system, it is increasingly recognised

throughout the world that, in many instances, there may

be alternative and perhaps more appropriate methods of

resolving civil disputes in a manner which may be more

cost and time efficient for all parties.

Merely because a dispute is defined as justifiable does

not necessarily mean that the courts are the only option

to seek redress.

In Italy, the Law aims to facilitate access to dispute

resolution and to promote the amicable settlement of

disputes by encouraging the use of mediation and by

ensuring a functioning interaction between mediation

and judicial proceedings. Mediation is legally enforce-

able in the United States, European Union and Asia. In-

dividuals or business can utilize Veterinary Mediation as

an out-of-court settlement process to avoid lawyer and

court costs.

In law suits relating to claims for medical liability

damages, both in human and in veterinary medicine, the

medico-legal technical consultancy has a key role in

determining whether the event the veterinarian is

charged with (death, worsening of the disease) is actu-

ally due to professional misconduct or to other factors

which will exonerate the veterinarian from professional

responsibility [4,5].

The foregoing brief remarks show how and why legal

proceedings relating to the investigation of medical li-

ability, of whatever kind, take a very long time to reach a

conclusion, because of their complexity and the way in

which this particular responsibility has to be established

and verified in practice. Moreover, in recent years law-

suits against veterinarians have increased exponentially,

with a consequent overloading of the judicial system. So

Italian Legislative Decree (LD) No. 28/2010, which in-

troduces a new procedural method to be activated in the

field of actions for damages resulting from medical li-

ability, is to be welcomed as it should help speed up the

settlement of such legal disputes [6]. It establishes the

institution of mediatio n aimed at reconciliation, which is

an obligatory preliminary stage for those who wish to

take legal action to assert their right to compensatory

damages against a physician/veterinarian considered

responsible for those damages through their professional

conduct.

In this paper the main objectives and principles of

mediation and conciliation and their role in a modern

civil justice system will be examined.

The importance of the institution of “mediation” for

veterinarians’ civil liability will be evaluated, underlin-

ing how it could become an important instrument in

speeding up the resolution of court actions concerning

medical malpractice.

2. DISTINGUISHING BETWEEN

MEDIATION AND CONCILIATION

The inconsistent use of both mediation and concilia-

tion terminology and principles potentially affects con-

sumers, researchers, policy makers, courts and tribunals,

all of whom need consistent and accurate information on

mediation and conciliation. As a result, it is likely that

many disputes that could effectively be resolved through

these methods end up in the courts and tribunals.

Mediation and conciliation, terms often used inter-

changeably, are two distinct concepts.

The term “mediation” is derived from the Latin word

“mediare” which means to be in the middle.

Mediation is an extension of direct negotiation be-

tween the parties, using a neutral third party (i.e., a me-

diator) to facilitate the negotiation process [7]. As a fa-

cilitator, the mediator has no authority to impose a solu-

tion on the parties nor are the results of the process

binding on the disp ut i n g part ies.

Conciliation is a more formal process than mediation

and it could generally involve the engagement of legal

representatives, thus making it a more expensive process

than mediation. There is, however, the added advantage

that should no amicable solution be reached, the con-

ciliator has the duty to attempt to persuade the differing

parties to accept his own solution to the dispute.

When provision for mediation is made in legislative

form, it should be defined as a facilitative consensual

and confidential process, in which parties to the dispute

select a neutral and independent third party to assist

them in reaching a mutually acceptable negotiated

agreement.

When provision for conciliation is made in legislative

form, it should be defined as an advisory, consensual and

confidential process, in which parties to the dispute se-

lect a neutral and independent third party to assist them

in reaching a mutually acceptable negotiated agreement.

It is evident that the fundamental difference between

mediation and conciliation is the degree of involvement

by the neutral and independent third party in the respec-

tive processes.

V. Quartarone et al. / Open Journal of Animal Sciences 1 (2011) 61-64

6363

Another important distinguishing feature between

mediation and con ciliation can be found in a comparison

between a rights-based approached to resolving a dispute

and an interested-based approach to resolving a dispute.

Interest-based dispute resolution processes expand the

discussion beyond the parties’ legal rights to look at the

underlying interests of the parties; they also address par-

ties’ emotions and seek creative solutions to the resolu-

tion of the dispute. The focus of these processes is on

clarifying the parties’ real motivations or underlying

interests in the dispute with the aim of reaching a mutu-

ally acceptable compromise which meets the real inter-

ests of both parties. It is generally accepted that media-

tion is a purely interest-based dispute resolution process.

In conciliation, there can be a greater focus on the legal

rights of the parties as opposed to their underlying inter-

ests.

On the basis of these considerations, it is evident that

there is a fundamental procedural difference between the

role of the conciliator and that of a mediator.

The conciliator is a more active intervener, and may

have an advisory role on the content and the outcome of

a dispute. A conciliator may make suggestions, give ex-

pert advice and use intervention techniques that not only

actively influence the likely terms of an agreement, but

also encourage all parties to settle. A mediator on the

other hand generally helps the parties to communicate

with each other so that they can identify, clarify and ex-

plore the issues in dispute before they consider their op-

tions to reach a mutually acceptable negotiated agree-

ment.

Mediation and conciliation have a statutory definition.

Several jurisdictions have already legislated for me-

diation and provide statutory definitions for the process.

For example, Article 1 of the Austrian Civil Law Media-

tion Act 2003 defines mediation as “an activity voluntar-

ily entered into by the Parties, whereby a professionally

trained neutral facilitator (Mediator) using recognised

methods systematically encourages communication be-

tween the Parties, with the aim of enabling the Parties to

themselves reach a resolution of their d ispute” [8].

Similarly, Section 5 of the Commercial Mediation Act

2005 in Nova Scotia defines mediation as “a collabora-

tive process in which parties agree to request a third

party, referred to as a mediator, to assist them in their

attempt to try to reach a settlement of their commercial

dispute, but a mediator does not have any authority to

impose a solution to the dispute on the parties” [9].

In the United States, mediation is defined under Sec-

tion 2(1) the Uniform Mediation Act 2004 as “a process

in which a mediator facilitates communication and nego-

tiation between parties to assist them in reaching a vol-

untary agreement regarding their dispute”. The Uniform

Mediation Act was drafted by the National Conference

of Commissioners of Uniform State Laws and approved

by it and recommended for enactment in all the states,

August 10-17, 2001 and amended A ugust 1-7, 20031.

The 2002 UNCITRAL Model Law on International

Commercial Conciliation defines conciliation as “a

process, whether referred to by the expression concilia-

tion, mediation or an expression of similar import,

whereby parties request a third person or persons (the

conciliator) to assist them in their attempt to reach an

amicable settlement of their dispute arising out of or

relating to a contractual or other legal relationship. The

conciliator does not have the authority to impose upon

the parties a solution to the dispute”2.

The Centre for Effective Dispute Resolution in the

United Kingdom defines conciliation as “a process

where the neutral takes a relatively activist role, putting

forward terms of settlement or an opinion on the case”3.

In Italy the LD No. 28/2010, specifically, defines

“mediation” as “the activity carried out by an impartial

third party aimed at assisting two or more subjects, both

in the search for an amicable agreement for the settle-

ment of a dispute and in the formulation of a proposal

for the solution of the same”. The term “conciliation”

means, however, “the settlement of the dispute after me-

diation has been carried out”, that is, a solution achieved

through mediation, while the term “Organ of concilia-

tion” indicates the “public or private body where the

mediation process may take place”.

It is important to fully understand what the legislators

were aiming to achieve with the introduction of this

obligatory stage before moving on to the usual legal

procedures so as to make an analysis of possible practi-

cal consequences for the health professions. Analysis of

the principles behind the enabling act whose direction

the Italian Government had to follow when emanating

the related law shows clearly that the legislator’s inten-

tion was to create an alternative system which would be

more agile and speedy than ordinary procedures. Indeed

it is now mandatory for specific civil and commercial

proceedings and is available in all cases for disputes

concerning available rights (that is to say, those rights

for which the holder may act in terms of availability, of

waiver of transfer, thus property rights in general). This

method of dispute settlement is indubitably of great sig-

nificance becau se, even thoug h it is obligator y, it is not a

substitute for the ordinary systems of justice. In other

words, although this procedural stage is obligatory, it

must in no way “preclude access to justice”. Indeed,

1For more details, see the following website:

http://www.law.upenn.edu/bll/archives/ulc/mediat/2003finaldraft.htm

2Available at www.uncitral.org.

3See www.cedr.co.uk

V. Quartarone et al. / Open Journal of Animal Sciences 1 (2011) 61-64

even when the professional bodies that are in charge of it

have a requirement of independence (for example,

judges) and offer conciliation/mediation services in the

long-term, they do not h ave the faculty to pronou nce any

decisional sentence (which arbitration bodies may do).

The only pronouncement made by “mediators” which

can produce juridical effects between the parties is the

“Statement of Agreement” which, once it has been ex-

amined by the presiding judge in whose district the pro-

fessional body is and has been found to be both formally

and substantially in order, may become an actual sen-

tence by means of a decree of homologation. It is of in-

terest here to see what bodies may aspire to become an

“Organ of conciliation”. Article 16 of the Legislative

Decree specifies that only those public and private bod-

ies which can guarantee efficiency and reliability will be

permitted to intervene in mediation; inclusion in a spe-

cial register is also necessary.

It should also be noted that the Councils of profes-

sional associations may, after receiving authorisation

from the Ministry of Justice, establish special bodies

from their own staff and on their own premises, to deal

with matters relating to their specific spheres of exper-

tise. Another important innovation, which can also have

a useful deterrent function, is the provision of special

rules concerning the payment of court costs. In contrast

to the rule which has the loser of the case pay the costs,

the regulations examined here contemplate the possibil-

ity that, in those cases where the sentence pronounced in

the ordinary proceedings exactly corresponds to the

agreement set out in the conciliation phase the judge

may decide not to recoup the costs incurred by the win-

ner if the latter rejected the agreement at the earlier stage

and, moreover, sentence him/her to repay the loser’s

costs and a further sum as a contribution to court ex-

penses. The possibility of being sentenced to pay dam-

ages remains, if the judge decides that the party has un-

dertaken a ‘reckless’ lawsuit, as well as a subsequent

sentence to pay the fees of experts who may have as-

sisted the Organs of conciliation in lawsuits where spe-

cific technical knowledge is required.

3. CONCLUDING REMARKS

In the light of the innovations in civil proceedings re-

lating to medical liability disputes, th e institution of me-

diation should be welcomed as, in future, it could be-

come a valuable instrument for settlement of disputes.

By taking a constructive approach, mediation allows the

parties involved to focus on the real interests at stake and

will, if time scales are evaluated appropriately, enable

favourable agreements for all parties to be reached

without long delays.

The advantages of mediation over litigation are its

lower costs, more confidential proceedings, and the de-

gree of control enjoyed by the disputing parties over the

process and outcome. In contrast, the legal system is

public, adversarial, lasts longer, clients and lawyers keep

track of who has treated whom the worst, and creates an

atmosphere of conflict and offers no emotional resolu-

tion.

In resolving allegations of medical negligence, pa-

tients/owners tend to favour mediation because it pro-

vides a forum in which they can express their concerns

and may lead to a recognition of the prob lem.

In conclusion, mediation can be effective in medical

malpractice cases in which the patient and the healthcare

professional wish to preserve their relationship or in

which poor communication has led to the dispute.

4. ACKNOWLEDGEMENTS

The authors thank Caroline Keir for her kind correction of the Eng-

lish language of the manuscr ip t.

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