Medical Malpractice Mediation and Arbitration in Maryland: Pros and Cons

June 30, 2023

Legal options are available to you in a medical malpractice case short of taking the case to a jury trial. While a hearing results from efforts to resolve your case have failed, you should not necessarily expect your case to go that far. Your medical malpractice lawyer can advise you on strategy and help you find means of alternative dispute resolution (ADR) if they are available.

If you have filed a medical malpractice case, there is a high chance that your lawsuit would be resolved before it reaches a trial. In general, few personal injury cases will go to trial. If your case survives the inevitable motions to dismiss, it would proceed to the discovery phase. Once discovery is concluded, many cases will be settled. However, it is not always easy to settle. Mediation can help you and the defendant settle the case before trial. Some litigants may also consider arbitration as a quicker form of dispute resolution.

Mediation in a Medical Malpractice Case

A mediator is a trained third party whose job is to help the two parties talk. Ultimately, mediation aims to facilitate a settlement before your case reaches trial. Mediation can occur at any phase of your case. It could take place before you have filed a lawsuit or during the course of your case.

The mediator does not have any power to impose a settlement on you. The worst thing is that you do not reach an agreement, and your case proceeds to trial.

Mediation works best when both parties show up intending to make a good-faith effort to resolve your case. The defendant may not even mediate if they were not interested in settling the case.

Here are some reasons why you may consider mediation as a means to settle your medical malpractice case:

• Depending on the facts of your case, the medical professional may be incentivized to settle the matter, and they could be prepared to move from their initial position in mediation.
• If mediation is successful, you can remove the risk of losing your case and ending up with nothing.
• You would spare yourself from a challenging trial process, where you would have to go through a deposition and testify in court.
• Mediation has an excellent track record of success in personal injury cases.

Here are some potential disadvantages of mediation:

• The defendant may be locked into their position and not ready to compromise. Then, you would be putting yourself through a time-consuming exercise that can harm your emotional health.
• You do not get discovery in a mediated case, so you may never know how strong of a case you have, where you may be able to get even more money if your case goes to trial.

Arbitration in a Medical Malpractice Case

Many plaintiffs will shy away from arbitration to resolve a personal injury lawsuit. While the negatives of arbitration often outweigh the positives, there are some reasons why you may consider arbitration.

First, an arbitrator may have more of a capacity to grasp the scientific and medical issues in the case than a jury. The arbitrator may have more experience in these cases than a jury.

Second, arbitration may be a faster way to get a resolution in your case. Medical malpractice cases have been known to drag on for years. The discovery process alone could take one to two years. Then, it could be another year until you get a trial date. If you win your case, the defendant may add more time by appealing the verdict.

The arbitrator would usually schedule a relatively quick hearing date. When they issue a ruling, it is generally not appealable. If you win your case, you will have your money much quicker.

However, several drawbacks to arbitration could make it infeasible for your case, including:

• Juries may award you punitive damages when the defendant’s conduct is extremely bad, but arbitrators do not have the power to order these damages.
• Medical malpractice cases are usually built through the discovery process, and you have less ability to request or subpoena documents from the defendant.
• You will have a limited right to cross-examine witnesses, which is usually how your case against the doctor can be strengthened. Your lawyer may be unable to question the doctor directly about what happened, either in a deposition or in front of a third-party neutral.
• Arbitration proceedings are confidential, so the medical professional can escape public scrutiny and accountability for what they did.

A Baltimore Medical Malpractice Attorney at LeViness, Tolzman & Hamilton Can Help You

Medical malpractice cases can be complex, but an experienced Baltimore medical malpractice attorney at LeViness, Tolzman & Hamilton can help. Complete our online form or call us at 800-547-4LAW (4529) for a free initial consultation.

We have offices in Baltimore, Glen Burnie, Lanham, and Owings Mills, allowing us to represent clients in Maryland, including those in Anne Arundel County, Baltimore County, Carroll County, Harford County, Howard County, Montgomery County, Maryland’s Western Counties, Prince George’s County, Queen Anne’s County, Southern Maryland, and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.