Medical malpractice dispute resolution and settlement negotiation

Medical Malpractice

Players: Attorney for the doctor, attorney for the plaintiff and conflict resolution professional.

The plaintiff claims that he was sent home with a bowel obstruction after surgery in September. This obstruction developed into a near-fatal fistula. The plaintiff also claims that the doctor failed to act on the X-ray information that revealed the obstruction and sent the plaintiff home earlier than was wise.

The doctor claims that she followed all the proper procedures. The doctor claims that the plaintiff should have told the doctor of the uncomfortable feeling as soon as it occurred. Instead, the plaintiff told the plaintiff's partner but not the doctor. The doctor believed that the plaintiff's not telling the doctor allowed the condition to become critical and that, therefore, the doctor owes the plaintiff nothing.

You are the resolution professional.

Sometimes the simple statement 'I'm sorry' can heal the divide that exists between an aggrieved patient and a physician accused of misconduct. However, in this instance, there is great uncertainty about the facts of the case. The doctor claims to have followed all proper procedures. But even if the patient did not express discomfort, it is questionable that no evidence of the patient's fistula was evident on the patient's X-rays. An objective, qualified third party should be called in to give an assessment of the evidence that was presented to the doctor, to determine if the doctor had enough evidence to identify the fistula before the situation became critical. A determination must also be made if the delay had a significant impact upon the patient's health status.

More difficult to interpret is the patient's interactions with the doctor. If the doctor did not probe the patient and ask him if the patient felt discomfort, the patient may have thought the sensation was not relevant and not wished to bother the doctor. Talking to each party individually to determine to what degree the physician asked questions and showed concern for the patient would seem the best way to discern the amount of subjective knowledge the doctor had about the patient's pain. Then, upon considering the medical information, the resolution professional should suggest a possible settlement for the matter, to avoid a protracted medical malpractice suit for both patient and doctor.

Scenario 4 Love in the office.

Players: Bob, Ted, Carol and Alice

Ted is friends with co-workers Carol and Alice. Ted is such a good friend with Carol; he knows the intimate details of her romantic life. Carol is dating another person in the office. When Ted walks by Carol's computer, he notices that she left open an e-mail message that Carol meant to send to her co-worker/lover. The message proposes romantic activities that evening. Thinking that both Carol and Alice will find it amusing, Ted sends Carol's message to Alice. Not only do they think it is amusing, they file a complaint with supervisor Bob.

You are Bob and call a meeting with Ted, Carol and Alice.

Appropriate behavior regarding sexual matters should be clearly outlined in all company materials. At an EEOC-compliant company, even the appearance of harassment should be avoided. All employees should also be familiar with federal guidelines prohibiting harassment, which includes harassment that contributes to a hostile workplace environment. A hostile workplace environment might include having inappropriate pictures prominently displayed, or inappropriate emails being sent in a work context. In this instance, Ted's actions were clearly contributing to a hostile workplace environment, even though his intention was not clearly malicious and intended as a friendly joke. However, Carol's use of the Internet for personal matters during the workday is also an example of how mixing work and personal matters can make it difficult for employees to get along. All workers should be reminded of the need to exercise good judgment and to keep work and personal matters separate. They should be referred to the relevant company policies in the employee handbook, if necessary. Bob in particular should receive additional sensitivity training in appropriate workplace behavior from an HR counselor. This type of incident should be a 'red flag' about the need for company-wide awareness about what constitutes harassment to avoid similar trouble in the future.

Ernie's perspective

Ernie is fed up with Bert. Each time it snows, Ernie shovels a parking spot for his car. You see Bert peeking out the window. As soon as Ernie drives away, Bert runs down and moves his car into the newly shoveled space. This time Ernie shovels all the snow into the space where Bert's car is parked partially covering his car. Bert comes running out, spewing obscenities at Ernie. Ernie said he wants to watch Bert to shovel for a change. As the argument grows louder, the manager comes out and demands that both go to mediation.

You are the conflict resolution professional.

While not against the law, shoveling someone 'in' is clearly a breach of common civility, as is taking a parking space of someone who has shoveled out his or her car. The conflict resolution professional should attempt to determine if Ernie was aware of Bert's perceptions of Ernie's behavior in the past, and try to establish between the two men some common ground. It is possible Ernie acted as he did because he was unaware that Bert felt that Ernie was stealing his 'spot,' and Ernie should be made aware of Bert's perceptions, to understand why Bert acted as he did when he covered Ernie's car with snow. The conflict resolution professional should attempt to negotiate a contract between Bert and Ernie -- Bert and Ernie could agree to work together to help shovel one another out, thus lessening both of their workloads and speeding up the process of digging out in the future. Regardless of what they agree to, both men should become cognizant of one another's perspective, to understand each other's behavior. Bert's behavior looks less asocial when he explains what Ernie has done in the past. However there is no indication that Ernie acted maliciously or understood why Bert covered his car with snow.