Starting with cases scheduled for trial next Monday and beyond, all medical malpractice lawsuits in Rhode Island must now go through mandatory mediation first, Superior Court Presiding Justice Joseph F. Rodgers Jr. has ordered.
The first three cases were scheduled for mediation last Friday. Retired Judge Richard J. Israel is conducting the sessions, which involve submitting a confidential case overview from each side, meeting jointly with the judge, then continuing individually with Israel.
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The idea, as explained in a document issued by Rodgers’ office, is that both sides will have a limited time to exchange settlement proposals and try to reach an agreement; if they can’t, the judge will give them the option of making his own suggestion.
Each side will decide independently whether to settle, without knowing the other’s decision. If they can’t agree, they will proceed to trial.
“Often lawyers involved in medical malpractice cases are very busy, and they don’t have the time or opportunity to meet face to face,” Rodgers said in an interview. Now, he said, the mediation process will provide that opportunity, and he’s ordered malpractice cases to be kept off the docket on Fridays so the lawyers’ schedules are free.
The Providence County Superior Court has 121 medical malpractice cases on the trial calendar right now, Rodgers said, with 34 scheduled for a “date certain” for trial. “If we can get rid of one out of (every) three, that’s an accomplishment.”
Of all the fields in which Rhode Island lawyers litigate, few are as contentious as medical malpractice. On one side are the trial lawyers who represent the plaintiffs; on the other are the providers, their insurers and a handful of defense lawyers they employ.
Insurers and the Rhode Island Medical Society say the trial bar unnecessarily delays cases, and for several years, most recently with Gov. Donald L. Carcieri’s support, they have been pushing for several changes in the law that they say would expedite cases, such as reducing the 12-percent interest to which successful plaintiffs are entitled.
The trial lawyers, for their part, have long contended that it’s the defense bar that delays cases, mostly because so few attorneys are handling all of the cases. Speaking about his new order, Rodgers made it clear which side he believes is right:
“Experience shows that 9 out of 10 cases are delayed not because of the unavailability of the plaintiffs, but of the doctors, and particularly the doctors’ lawyers,” Rodgers said. The insurers’ claim that plaintiffs delay cases is “absolutely untrue,” he said, and so are all the complaints about a “medical malpractice crisis,” which he said doesn’t really exist here.
But like everyone else, Rodgers has heard the litany of back-and-forth accusations for years, and he did want to try to speed up the resolution process. After a year’s work by members of the Superior Court Bench/Bar Committee, the mediation program was born.
Mediation has been tried in several other states, usually as a voluntary option, and results have been mixed. But support for the practice is near-universal: Nationally and in Rhode Island, both plaintiffs’ and defense lawyers say they want a speedier, less hostile way to resolve their disputes.
Cristine L. McBurney, a Pawtucket lawyer and president of the Rhode Island Trial Lawyers Association, said her group’s members are “ecstatic” about the order, and they view it “as a way to address the protracted litigation and the delays caused by defense counsel.”
For consumers, McBurney added, “it works out beautifully … because now you’re going to have a chance to get your case heard much sooner.”
Of course it will take time. At three cases per week, every Friday, it would take Judge Israel more than two months just to make it through the cases currently on the Providence Superior Court trial calendar – and more would, of course, be added in the meantime.
But Miriam Weizenbaum, a trial lawyers association board member who is active in medical malpractice litigation, called the new program “absolutely a step in the right direction” and “the right approach” even if it takes awhile for lawyers on both sides to get used to it.
Malpractice cases are very complex, Weizenbaum said, so they’ll still take longer than your average tort – she estimated she might be ready to discuss a settlement after six months to a year of discovery. Yet that’s well before she can get a busy defense lawyer to the table now, she said, and her clients just wait needlessly.
“If they’re saying, ‘I don’t have time for a trial until nine to 11 months from now,’ but now they have to go to mediation, that will help,” she said.
In an e-mail in response to a PBN inquiry, Philip R. Hinderberger, senior vice president and general counsel for the NORCAL Mutual Insurance Co., the state’s largest malpractice carrier, hailed Rodgers’ order as a positive step, noting that California – NORCAL’s home state – has a mediation system, and “we … feel there are real benefits to early judicial intervention aimed at speeding up case resolution.”
Mediation could increase defense costs by about 10 percent, Hinderberger said, “but early resolution of medical liability cases will more than justify the additional cost.” According to the National Practitioner’s Data Bank, he wrote, Rhode Island medical liability cases take, on average, more than six years from incident to resolution, three times as long as in California, so there is room for improvement.
But mediation won’t be enough, Hinderberger argued. Rodgers should order even more changes, including mandatory disclosure of expert witnesses “within a year or two after a case is filed” and annual mandatory status conferences.
“Until such time, it will be difficult to substantially reduce the delays in medical malpractice cases in Rhode Island state courts, which are currently some of the longest in the country,” Hinderberger wrote.
