Mandatory Pre‐Suit Mediation for Medical Malpractice: Eight‐Year Results and Future Innovations

Date01 September 2017
Published date01 September 2017
C R Q, vol. 35, no. 1, Fall 2017 73
© 2017 Association for Confl ict Resolution and Wiley Periodicals, Inc.
Published online in Wiley Online Library ( • DOI: 10.1002/crq.21194
Mandatory Pre-Suit Mediation for Medical
Malpractice: Eight-Year Results and
Future Innovations
Randall C. Jenkins
Gregory Firestone
Kari L. Aasheim
Brian W. Boelens
Situated in the litigious state of Florida, UF Health implemented its
mandatory pre-suit mediation program in 2008 to compensate meri-
torious medical malpractice claims quickly, combat increasing attorney
fees and costs, reduce frivolous lawsuits, and facilitate early, confi den-
tial communication to enhance the patient-provider relationship. Data
analysis over the program s eight-year history demonstrates positive
impacts on legal expenses and resolution time; results show a reduction
in legal expenses of 87 percent as compared to traditional litigation and
average receipt-to-resolution time of less than six months.  e authors
examine the Florida infrastructure supporting the program s success and
off er recommendations for future expansions.
Jenkins, Smillov, and Goodwin ( 2014 ) documented the success of the
Florida Patient Safety and Pre-Suit Mediation Program (FLPSMP) over a
period of fi ve years “to provide deserving patients with fast, fair compensa-
tion while limiting the healthcare provider expenses incurred during tra-
ditional litigation” (15). Beyond demonstrating the continued success of
the program with an additional three years of data, this review explains the
unique aspects of Florida mediation laws and Florida infrastructure that
support early pre-suit mediation and off ers recommendations for future
expansion innovations, including confl ict resolution education at the pro-
vider level and even earlier voluntary mediation opportunities to facilitate
diffi cult conversations.
C R Q • DOI: 10.1002/crq
Background: The High Economic and Societal Costs
of Traditional Medical Malpractice Litigation
In the United States, the traditional medical malpractice system costs
more than $55.6 billion annually (Mello, Chandra, Gawande, and
Studdert 2010 ). According to a 2015 Aon Risk Solutions (Aon) and
American Society for Healthcare Risk Management (ASHRM) bench-
mark analysis, Florida s loss rate—a combination of average claim
costs to resolve and annual volume of claims—is the highest among
all states, at 2.9 times the national average. In South Florida, a notori-
ously plaintiff -friendly jurisdiction, closed-claim fi gures among claims
with indemnity over twelve years average $607,000, compared to the
average closed-claim fi gure of $374,000 nationwide (Aon and ASHRM
2014 ).
Major categories of economic costs in the current liability system
include indemnity payments and legal expenses. Particularly when cases
are litigated over a long period, legal expenses can thoroughly erode any
settlement amount that patients ultimately retain. Initiating legal proceed-
ings with an attorney on contingency essentially guarantees, at a mini-
mum, that 30 percent of either settlement payment or jury award remains
with the lawyer. In addition, the patient/claimant is responsible for all
legal expenses associated with the litigation, including expert witnesses
and court fees. Statistically, fi fty-four cents of every dollar of compensation
procured through formal litigation are consumed by legal expenses and
costs (Studdert et al. 2006 ).
In addition to these economic costs, the traditional malpractice litiga-
tion system involves delays, ineffi ciencies, and uncertainties that expose
patients and providers to societal costs, including emotional eff ects and
temporal waste, which are more diffi cult to evaluate in monetary terms.
By incorporating a mandatory, pre-suit mediation agreement into the
informed consent process, University of Florida Health (UF Health)
has eff ectively reduced the economic and noneconomic costs of tradi-
tional litigation by using FLPSMP. As this article details, based on data
gathered over FLPSMP s fi rst eight years, the program results in months’
faster resolution of claims and, accordingly, expedited and increased net
compensation to deserving patients, as well as lower legal costs for all
parties by fostering early, confi dential communication between patients
and providers.

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