Mediating medical mishaps

March 31, 2004

LOOKS LIKE a redesign of Maryland's system for compensating the victims of medical mistakes is too ambitious a goal for this rapidly concluding General Assembly session. But the House of Delegates has produced a first step that could save parties in malpractice cases considerable time, grief and expense until more comprehensive reforms are adopted.

Legislation overwhelmingly approved by the delegates Monday would require that a good-faith attempt be made to mediate malpractice complaints before they go to trial in hopes that a mutually satisfactory resolution can be reached and a full-blown trial wouldn't be needed.

Modeled on practices being used by the Circuit Courts in Baltimore and Prince George's County and by the Johns Hopkins Medical System, mandatory mediation doesn't require either side to forgo its rights but may speed relief to victims while also cutting down on legal fees, court costs and expenses.

"Ninety percent of our malpractice cases are resolved through mediation, and both plaintiffs and defendants are very satisfied," said Howard S. Chasanow, a retired appellate judge who acts as a mediator in Prince George's County. "That never happened to me in 30 years as a judge."

The state Senate, which has already killed Gov. Robert L. Ehrlich Jr.'s proposal to reduce the maximum amount of so-called pain and suffering damages that can be awarded to victims, should quickly embrace this more modest approach to make victim compensation swift, fair and predictable.

Maryland is not yet in the throes of a malpractice insurance crisis like those in states such as Pennsylvania that are forcing doctors to move or give up medicine. But steep rises in insurance rates suggest such a crisis here may not be far off.

It must be addressed on several fronts, including improvements in patient safety, aggressive reporting of medical mistakes, tighter discipline of bad doctors, insurance relief for physicians in high-risk specialties, and more realistic calculations for economic losses to victims.

The House bill includes some tightening of the rules for awarding malpractice damages, but assigns most of the remaining issues to a task force for further study over the summer with the prospect of recommendations for action by next year's General Assembly.

In applying the mandatory mediation requirement to malpractice cases right away, though, the lawmakers can launch their reforms by injecting civility and compassion into a process now too often made viciously adversarial by lawyers who get paid more for driving up the size of the judgments - at everyone else's expense.

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