In January 2020, the Supreme Court of India set up a committee of international experts on alternative dispute resolution (“ADR”) to draft and recommend a legislation to regulate mediation in India. On a seemingly unrelated note, by the end of March 2020, the healthcare system in the country was overwhelmed with the burden of managing the pandemic caused by an undiscovered strain of coronavirus, COVID-19. Linking these two separate, continuing events is healthcare mediation – a party-centric mechanism that can potentially resolve sensitive, and often grave, issues within the healthcare industry.
Why healthcare mediation?
With over 6 lakh active cases in India, medical professionals, primarily those working outside their areas of expertise, continue to face hurdles in providing due care to patients. Along with a nation-wide dearth of basic medical facilities, states are also reluctant to strictly enforce the Clinical Establishments (Registration and Regulation) Act, 2010, which sets the minimum threshold of medical care. These have triggered a sharp rise in the number of suits filed claiming medical negligence. Hence, identifying a more party-centric and accommodating mechanism, such as mediation, is the need of the hour. In an attempt to examine the potential of healthcare mediation in India, the authors analyse its benefits and the factors hindering its growth in India.
The healthcare system involves highly asymmetric power relations in terms of resources, between hospitals and patients, which often push the victims of medical malpractice into silence. To mitigate this, mediation has been found to aid resolution of disputes related to out-of-pocket expenditures and medical malpractice. It further allows the patient and the physician to either preserve their relationship or terminate it in a less destructive manner. Additionally, mediation is based on the element of confidentiality and is ideal for sensitive disputes such as those of medical negligence.
In a personal interview with Ms. Louise Phipps Senft, the founder of Baltimore Mediation (the first private mediation firm in Maryland, USA), she explained that in addition to compensation, victims of medical malpractice generally seek an apology from the service provider, and changes in standard of care. However, experiences of mediators such as Mr. Jeff Trueman, a highly experienced mediator in Baltimore, USA, indicate the contrary – parties have often placed monetary compensation above all other means of ‘achieving’ vindication. The divergence of conclusions on whether parties value monetary or non-monetary compensation more, should not, however, divert attention away from the anecdotal and empirical evidence that suggest a considerably higher success rate of mediation than adversarial litigation.
The adversarial nature of litigation and delay caused due to an abysmally low judge-to-population ratio can cause severe emotional and financial distress to victims and their family. Moreover, prolonged public conflict between the litigants can cause immense emotional disturbance, particularly if the aggrieved party is already agonized over the errors or oversight on part of the other party. Contextually, the confidential nature of mediation particularly suits healthcare disputes because it provides an opportunity for the service provider to talk about their responsibilities in a non-litigatory environment, and the victims get to understand the treatments involved. Additionally, an apology or acknowledgement of responsibility received becomes an additional remedy instead of a remedy alternative to monetary damages in mediation. This is because of mediation’s ability to accommodate both monetary and non-monetary compensation.
However, to promote healthcare mediation impetuously would be unduly optimistic. Many parties spend considerable time and money on mediation in the hopes of a settlement, only to realise later that litigation is inevitable. Furthermore, there exists no legal provision enabling parties to compel the disclosure of documents during mediation – it is entirely dependent on the parties’ agreement to mediate. While patients have the right to demand medical records from their physician, who can be penalized for professional misconduct if they default on the issuance of such documents, it is uncertain how accessible this right is for many patients, especially those from the lower strata of society. Therefore, a prescribed discovery procedure would go a long way in ensuring equal access to medical records for patients.
Healthcare mediation faces another major challenge in India –the lack of institutional support for mediation in the healthcare industry. The COVID-19 pandemic highlights the burden on healthcare professionals to work within severe administrative and legal impediments. In light of the dismal doctor-patient ratio in the country, it would be unreasonable to expect healthcare professionals to attend mediation proceedings without compromising on their official duties. As such, parties who place a greater emphasis on direct communication and apology would not be able to receive an apology and the explanation they ask for.
Lessons from around the world
Germany and France: While Germany endorsed healthcare mediation through the set-up of individual Healthcare Ethics Committees in every other hospital, France opted for a regulatory approach by creating a specific department within their National Authority for Health. These bodies would inter alia act as an ombudsman to patient complaints. The authors suggest that not only could such a committee in hospitals or a governmental department be set up in India, but that they can also act as a pre-mediation dispute resolution process to discourage disputes from escalating.
Brazil: Due to the prevalence of individual litigation over collective medical claims in Brazil, a centre for mediation and conciliation, the Câmara de Resolução de Litígios de Saúde (CRLS), was established in Rio de Janeiro that works exclusively on health-related issues and manages pre-litigation mediation. Later, similar committees and chambers have been set up all over Brazil, reporting 70-80% success rates uniformly.
USA:In 2005, a Joint Commission proposed a certain model of ADR as either an alternative or additional means of resolving medical disputes. Additionally, the American College of Physicians has supported mediation as a critical means of resolving disputes within the industry.
The systems in USA, Brazil, France and Germany offer glimpses into the different approaches to settling disputes related to medical malpractice – service providers setting rules by themselves for promoting mediation, regulatory bodies that act as ombudsmen, and setting mediation as a pre-litigation requirement. It is debatable whether pre-trial mediation should be mandatory or an opt-in option, but it is evident that the information asymmetry among advocates and clients would be an important factor to consider.
Considerations for India
The primary factor that derails healthcare mediation in India is the sheer difference in the services offered by government and private facilities, and the impact this makes on their ability to engage in mediation. Government hospitals witness heavier footfalls but possess fewer resources than private hospitals. Consequently, the discontent among patients is high and the physicians are always overburdened. In these circumstances, there is an absence of an environment conducive to mediation.
If healthcare mediation is to be promoted on a long-term basis, it would be imperative to improve the doctor-patient ratio and the management of the responsibilities of medical facilities, such that attending mediation does not impact their professional obligations. Additionally, encouraging a culture of open communication with patients and providing adequate legal protection to physicians is necessary in order to facilitate a shift in focus from the fear of adversarial litigation to a more amicable mediation.
While it may seem that a separate legislation would virtually be a panacea to most of the struggles faced by professionals and parties alike, the mere recommendation to formulate a Mediation Act may not suffice. Younger legal professionals should have an incentive to participate in and encourage mediation. Infrastructural and institutional deficiencies such as the culture of defensive communication and overburdening of medical professionals need to be rectified at the earliest in order to make mediation a forum of first instance. For this, a holistic plan that provides for a formalized infrastructure, and adequate funding needs to be devised on a priority basis. The setting up of the 2020 Supreme Court Committee in itself appears to be a step in the right direction, and the authors hope that the nuances of healthcare mediation are identified and addressed soon so that the reality of effective ‘mediation for all’ becomes less elusive.
 R Hayward, ‘Balancing Certainty and Uncertainty in Clinical Medicine’  3 Developmental Medicine and Child Neurology J 73
 Danny WH Lee and Paul BS Lai, ‘The Practice of Mediation to Resolve Clinical, Bioethical, and Medical Malpractice Disputes’  Hong Kong Medical J 560, 564
 Interview with Ms. Louise Phipps Senft, CEO, Baltimore Mediation (Zoom videoconference, 24 May 2019)
 Email from Mr. Jeff Trueman to authors (15 June 2020)
 TH Gallagher and others, ‘US and Canadian Physicians’ Attitudes and Experiences Regarding Disclosing Errors to Patients’  166 Archives of Internal Medicine J 1605, 1611
 Frank Gomberg, ‘Apology for the Unexpected Death of a Child in a Health Care Facility’ (Gomberg Mediation Solutions Inc., 15 May 2019) 35
 Email from Mr. Gracious Timothy to authors (21 June 2019)
 Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, reg 1.3.2
 Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, regs 7.2, 8.2
 Joint Commission on Accreditation of Healthcare Organisations, ‘Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury’ (Joint Commission, 2005) <https://www.jointcommission.org/-/media/deprecated-unorganized/imported-assets/tjc/system-folders/topics-library/medical_liabilitypdf.pdf?db=web&hash=B7E4D12D38C7A469FCEE06073E5D2C64> accessed 10 July 2020
 VikasBajpai, ‘The Challenges Confronting Public Hospitals in India, Their Origins, and Possible Solutions’ Advances in Public Health (13 July 2014) <https://www.hindawi.com/journals/aph/2014/898502/> accessed 27 October 2020.