Reducing Lawsuits in Healthcare
Derrick Heim
BUSI 506 Legal and Ethical Issues for Health Professionals
Liberty University
December 9, 2022
Malpractice litigation and dispute resolution go hand in hand when it comes to decision making.
All levels of healthcare practice their professions. The word, practice, is important because each
individual is different and we are always seeing different signs and symptoms of illnesses and
diseases. The goal of healthcare administrators is to come up with some type of mitigation that
will keep their health care professionals out of malpractice lawsuits. This research relays that
malpractice litigation has to be in the minds of healthcare professionals and can sway their
decision-making abilities one way or the other to prevent litigation. My area of practice is
paramedicine in which there are not many malpractice litigation articles because paramedics fall
under their medical director's license, but can still see claims against them from driving issues or
willful neglect.
Reducing Lawsuits in Healthcare
One of the largest expenses in healthcare systems for the system and the providers is malpractice
insurance. Providers have a duty to decide whether they are going to be offensive or defensive
caregivers and will have to pay the ramifications for such decisions throughout their careers.
Jowett (1922) states "If we are to find our duties among our mercies, it is necessary that we tread
the somewhat forgotten road of divine providence. We must rummage among our negligence.
We must make an inventory of our favours" (p. 52). It is these types of biblical teachings that
will guide a provider to whichever side that they so choose with their physical, emotional, and
spiritual well-beings factored in. The way to success is to not put the total weight of the decision
on oneself.
"Without counsel plans fail, but with many advisers they succeed" (Proverbs 15:22, English
Standard Version). Providers and systems have to go through lawsuits, eventually, but must look
to the Bible for guidance about how to reduce the number of lawsuits by deciding outcomes
outside of the courtroom.
The reason for so many providers to acquire malpractice insurance is due to the three basic
categories of tort law. Negligent, intentional, and strict liability are the three categories described
by Pozgar (2019). The reason for a need for alternatives to constant requests for payouts is due
mostly because the limits placed by insurance companies on everything they cover. Pozgar
(2019) stated "Although professional liability insurance helps to insulate a provider from
financial loss, the fear is ever present that the monetary award may exceed the provider's
coverage limits" (p. 42).
Negligence is described as carelessness when performing one's duties that doesn't meet the
standard passed on by predecessors (Pozgar, 2019). There is a large difference between
negligence and criminal negligence because criminal negligence means a provider completely
disregarded the safety of another (Pozgar, 2019). While there are some risks in anything medical,
"it is the responsibility of the treating professional to inform his or her patient as to the inherent
risks, benefits, and alternatives of a proposed treatment or procedure" (Pozgar, 2019, p. 43).
This research is based on the daily lives of paramedics and how they get involved in medical
malpractice that reaches a point of negligence and further litigation. Little research is conducted
on paramedics and medical malpractice insurance because most paramedics fall under the
jurisdiction of their associated Medical Director. Where paramedics reach the most potential for
legal issues is when they dont take patients to a hospital and get them to sign a refusal of care.
Nordby (2013) stated "patients are not fully autonomous, and if letting them decide can have
serious negative for them, then health personnel may be entitled to use persuasion techniques
that go beyond pure factual and informative communication" (p. 49). This can lead to ethical
issues added into the legal issues already clarified.
Use of Alternative Dispute Resolution (ADR)
There are alternatives available to anyone willing to look for a tool to help avoid some type of
monetary fee to the person who had suffered the damages, and these don't have to be just
physical. Sohn & Sonny Bal (2012) stated "as healthcare and malpractice costs continue to rise,
there is growing interest in tactics such as early apology, mediation, and arbitration in the
medical arena" (p. 1370). The early use of alternative tactics can reduce more than 50% of
medical malpractice litigation according to Sohn & Sonny Bal (2012).
There are direct and indirect costs to alternatives because they have immediate cost savings to
providers and insurers. The indirect costs can be attributed to decreased costs for anyone who
needs healthcare services, because the costs savings are directed to the consumer because the
providers are seeing a cost savings. Pozgar (2019) states "Mediation and arbitration are basically
mechanisms for simplifying and expediting the settlement of claims" (p. 78). The main
difference between the two are how the end result is determined.
In mediation, the mediator is a neutral third party who helps facilitate discussion for the parties
to reach their own mutually negotiated settlement (Pozgar, 2019). "The main benefits of
mediation are that it can result in an expeditious and less costly resolution of the litigation, and
can produce creative solutions to complex disputes often unavailable in traditional litigation"
(Pozgar, 2019, p. 78). Of all the alternative dispute resolution techniques, the one that is the most
effective, according to Walters (2014), is mediation. "Arbitration is the process by which parties
to a dispute voluntarily agree to submit their differences to the judgment of an impartial
mediation panel for resolution" (Pozgar, 2019, p. 78). This is one of the last steps available to
prevent medical malpractice claims from reaching the courts and require consent from both
parties to have their cases heard by the impartial panel. Gilles (2014) stated "all manner of tort
claims (including negligence, loss of chance, and other allegations of medical malpractice
resulting in physical and psychological injury) could soon be hashed out in the sequestered
universe of arbitration" (p. 677).
Malpractice insurance companies are having their providers put manners of arbitration in their
contracts with their consumers, in order to prevent lengthy and expensive court processes (Gilles,
2014). "The Supreme Court has driven this development by its broad embrace of arbitration"
(Gilles, 2014, p. 679). Depending on the agreement between the two parties, arbitration decisions
can be binding or non-binding (Pozgar, 2019). Both arbitration and mediation aid in the process
of settling malpractice litigation outside the courtroom.
Healthcare providers have also used alternative dispute resolutions to file countersuits for
medical malpractice suits that the healthcare providers feel are frivolous and lack any real legal
merit, having little chance to win (Pozgar, 2019). Most frivolous lawsuits try to ruin a reputation
more than winning the court case but there are federal laws that try to prevent this heinous act.
"United States Rule 11 of the Federal Rules of Civil Procedure and similar state rules require an
attorney to perform a due diligence investigation concerning the factual basis for a claim or
defense" (Pozgar, 2019, p. 80).
These rules try to maintain legal ethics and try and reduce the costs associated with the process
of litigation. Pozgar (2019) stated "The costs associated with filing a lawsuit include time spent
in preparing and litigating a case, obtaining and analyzing medical records, obtaining expert
witnesses, conducting depositions, and a variety of other costs associated with litigating a
lawsuit" (p. 80).
Bible-based dispute resolution The Bible is full of conflict and Jesus Christ was trying to show
His believers the right way to achieve conflict resolution. Resolving conflict between brothers
and sisters is more important than worshiping God. "So if you are offering your gift at the altar
and there remember that your brother has something against you, leave your gift there before the
altar and go. First be reconciled to your brother, and then come and offer your gift" (Matthew
5:23-24, English Standard Version). Anger is one of the seven deadly sins because of how it
manifests in an individual to the point of fury over love.
Jowett (1922) stated "And if these smaller things in life afford such riches of opportunity for the
finest loyalty, all our lives are wonderfully wealthy in possibility and promise" (p. 122).
We need to be thankful for the things we have been given and the things we have earned.
We are all human and make mistakes but shouldn't punish a health care professional for a non-
negligible incident to make some fast cash in litigation. "Be kind toone another, tenderhearted,
forgiving one another, as God in Christ forgave you" (Ephesians 4:32, English Standard
Version). As Christians, we need to forgive people for their mistakes and move on with our lives.
"Hatred stirs up strife, but love covers all offenses" (Proverbs 10:12, English Standard Version).
Conclusion
Simplicity in medical malpractice litigation and the prevention of such through alternative
dispute resolutions can yield great rewards. Simple techniques like apologizing can reduce a
large number of lawsuits because the patients will feel comforted and will not want to litigate
against a thoughtful health care provider. There needs to be a balance point between offensive
and defensive medicine for both the providers and the patients to feel they are getting what they
deserve out of the situation.
The costs associated with health care can be greatly reduced if we limited the number of lawsuits
for malpractice claims. All levels of health care are at risk of litigation and should remember
such when caring for an individual. Health care providers practice medicine. The word, practice,
is important because each individual is different and we are always seeing different signs and
symptoms of illnesses and diseases. "The United States Department of Health and Human
Services has estimated that between $76 and $126 billion is spent per year on litigation in
medical malpractice" (Sohn & Sonny Bal, 2012, 1372). Going back to using basic
communication skills of talking one on one, face to face, will be the key to lowering this figure.
References
Gilles, M. (2014). Operation arbitration: Privatizing medical malpractice claims. Theoretical
Inquiries in Law, 15 (2), 671-696. doi:http://dx.doi.org.ezproxy.liberty.edu/10.1515/til- 2014-
0215
Jowett, J. (1922). Friend on the road and other studies in the gospels. New York: George H.
Doran Company. Retrieved from http://www.ccel.org/ccel/jowett/friendonroad.iii.i.html
Nordby, H. (2013). Should paramedics ever accept patients' refusal of treatment or further
assessment?.
BMC Medical Ethics, 14 (1), pp. 44 - 53. Retrieved from
https://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-14-44
Pozgar, G. (2019). Legal Aspects of Health Care Administration [E-reader Version]. Retrieved
From https://openpage-ebooks.jblearning.com/wr/viewer.html?
skipLastRead=true&oneTimePasscode=ST-280f4e59-77a1-4f5e-b94d-
eb44d46aeff1#book/55d6b224-d87c-47e6-a98e-6fb6f2575c3f/i01_TitlePage
Sohn, D., & Sonny Bal, B. (2012). Medical malpractice reform: the role of alternative dispute
resolution.
Clinical Orthopaedics and Related Research 470 (5), pp. 1370-1378. Retrieved from
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3314770/
Walters, J. (2014). Mediation - an alternative to litigation in medical malpractice. South African
Medical Journal 104 (11), pp. 717-724. Retrieved from
http://www.scielo.org.za/pdf/samj/v104n11/01.pdf
