Study Identifies Strategies to Facilitate Successful Medical Malpractice Mediation

Research published in the Journal of Cosmetic Dermatology has highlighted five key elements that have led to positive resolution of medical malpractice claims.

While our malpractice insurance packages aim to support you in resolving a claim and protect you from legal action, it’s good to know what the research says when things go wrong.

Here we share the details of the study…

The aim

The authors of Retrospective analysis of aesthetic medical malpractice in mediation proceeding: a single-court experience sought to analyse aesthetic disputes and factors associated with successful mediation, emphasising how, ‘Mediation (alternative dispute resolution) prevents lawsuits, thereby saving time, labour, and money, and minimalizing damage to patient-provider relationships’.

By reviewing court records of 51 aesthetic medical malpractice cases in the Taiwan Taipei District Court between February 2019 and November 2022, the researchers identified the differences between successful and failed mediation to provide valuable learnings for aesthetic practitioners.

The cases

Aesthetic procedures involved in the medical malpractice cases investigated included surgeries, thread lifting, botulinum toxin and dermal filler injections, laser treatments and other energy-based devices.

There were two deaths listed, three cases of disability, 28 cases of injury and 18 involving no impairment. Blindness, skin necrosis and burns ranks in the top three medical malpractice complaints relating to non-surgical procedures.

The key elements of medical malpractice involved breach of necessary care duty in medical practice, breach of reasonable professional clinical discretion, breach of medical routines and guidelines, and presence of medical uncertainty.

The results

Of the 51, 40 mediation cases failed, while only six were successful. Five were withdrawn for various reasons.

The researchers identified that physician’s attendance at mediation was significantly higher in successful cases than in failed, while the mean claim amount of successful mediation was significantly lower than in those where mediation failed. Overall, successful mediation resulted in a 70% reduction in claim amounts.

There were no significant differences resulting from the patient’s attendance at mediation, frequency of mediation, medical expenses of aesthetic practice, degree of impairment, and aesthetic procedures between successful and failed mediation.

The outcomes

Upon reviewing the results of the research, the authors identified five key elements which facilitated successful mediation for aesthetic medical malpractice. These were:

1. Comprehensive communication before procedures

The authors said, ‘Dissatisfaction with the results of cosmetic procedures and violation of the doctrine of informed consent was the root cause of many medico-legal disputes, highlighting the necessity of comprehensive communication before procedures’.

They advised that patients need adequate time to make a decision after a consultation and seeking a second opinion from another practitioner should be encouraged.

2. Doctrine of informed consent

The authors recommended that the informed consent process should be improved by ‘involving patients in decisions, documenting the process in detail using an electronic medical record, and providing procedure-specific consent forms and patient education materials’.

3. Avoiding violation of reasonable professional clinical discretion or medical routines and guidelines

‘Incidents due to medical uncertainty alone do not prevent successful mediation if physicians have complied with medical routines and guidelines’, according to the authors, emphasising the importance of always following best practice.

4. Physician’s attendance during mediation

The authors explained how several physicians chose not to attend mediation due to the time-consuming process, instead relying on lawyers/counsels to handle their malpractice cases. However, they suggested that ‘the physician’s attendance, conveying empathy and sincerity to the patient, can facilitate successful mediation’.

5. Reasonable claim amounts by the patients

Finally, the authors indicated how ‘preposterous, unreasonable claim are a clear indication of the patients’ unwillingness to negotiate’, which inevitably results in failed mediations which are outside the control of physicians.

The authors concluded by saying, ‘We would like to flag two key factors in successful mediation in the field of aesthetic medicine: adequately communicating expected treatment outcomes with the patient prior to aesthetic procedures and the physician’s in-person attendance at mediation.’

Enhance Insurance’s view

This research provides a great inside into medical malpractice cases and how they can potentially be resolved. We concur with the authors’ conclusion that excellent communication can prevent malpractice claims arising in the first place; we always recommend taking your time to provide detailed consultations, manage expectations and highlight all risks associated with a procedure.

You can read more about minimising malpractice claims here and click here find out what professional indemnity / medical malpractice insurance.