Physician Errors, Liability, and the Possibility and Outcome of Mediation in Medical Disputes
Mediation Possibilities and Outcomes in Debates within the Medical Field:
Mediation is a new institution for us in the realm of medicine. Nevertheless, despite this, satisfactory results have been achieved in family, labor, civil, and commercial disputes.
I believe that mediation can be effective and yield good results in resolving disputes related to the medical field through the use of mediation.
In Western countries, the use of mediation procedures to resolve disputes and disagreements is widespread. Particularly, mediation in the field of medical services is common and part of daily practice. According to statistics published by official sources, about 80% of disputes arising during the provision of medical services are resolved before reaching court.
Mediation is an alternative dispute resolution method outside the courtroom. Through mediation sessions, parties can resolve their disputes in a manner and format they desire, often incurring lower costs compared to going to court. Mediators assist parties in approaching the dispute from different angles, facilitating the creation of common interests between parties, and proposing possible solutions based on information obtained during the sessions.
Mediation procedures can be used during the following disputes in the field of medical services:
- Between medical institutions and patients,
- Between medical institutions and personnel,
- Between medical institutions and contract parties (suppliers, insurance companies),
- Between medical institutions and regulatory authorities.
The mentioned disputes belong to civil, labor, commercial, and administrative law relations. In our country, participation in initial mediation sessions is required only for labor disputes before resorting to court, while for others, dispute resolution through mediation is possible only upon the voluntary referral of both parties to the mediator.
Taking into account the provisions of the "On Protection of Consumer Rights" Law, when considering the impact mechanisms envisaged for the service provider in this legislative act, the patient is not always the weaker party in disputes. Often, clinics cannot prove their claims due to formal errors in documents, which leads to the involvement of the enterprise subject to high financial costs such as state duties, court expenses, fines, and penalties. In the era of the internet, medical organizations may face significant reputation losses, affecting their budget. It should also be noted that a contentious patient will complain to all possible authorities, which will be the basis for inspections in medical institutions.
The use of mediation in the resolution of legal disputes in healthcare has many positive aspects, including the speed of finding mutually beneficial solutions, confidentiality, maintaining normal relations without resorting to court, and protecting the reputation and positive image of physicians and all medical workers. It also helps organizations minimize financial costs.
Although many countries have accumulated sufficient experience in the application of mediation methods in criminal law, there is almost no experience in this field in our country. Therefore, the resolution of disputes arising from civil, commercial, and labor relations through mediation is possible within the framework of the "On Mediation" Law. Such mediation agreements are complex and multifaceted because they cover not only disputes in the service sector (between doctors and patients or their relatives, and between patients and medical institutions) but also labor disputes arising within medical institutions (between doctors and clinic management, among colleagues, between doctors and other staff, etc.).
When discussing relations in medical disputes, it should be noted that this party can be represented by legal representatives and/or other relatives, which distinguishes the mediation procedure in many aspects. Mediation in the healthcare system is already being implemented and is based on existing legislation. However, another issue arises: the general principles of the Mediation Law do not take into account the specifics of the field it is applied in. Therefore, it requires time, specific medical mediation experience, and mediator expertise to address.
Thank you for your attention.
Sevda Maharramova
Director of Baku Mediation Organization No. 12, mediator
07 İyun 2024