The role of insurance companies during the process of mediation in medical law cases
In order for a case to be the subject of mediation, it has to be governed by private law, and the case has to directly concern the parties (article 2, L. 3898/2010).
Cases that can per se be subjected to a procedure like that are medical law cases, where patients claim compensation from doctors and hospitals for non lege artis operations – therapies that they have undergone. It has to do with cases relevant to the law of obligations, but mainly to the soft law, where th amount of compensation is determined by the court, but could also be agreed upon by the parties, avoiding the expensive and time-consuming judicial procedure, which, aside from everything else, as often claimed by doctors, does not fit the prestige of the medical profession.
However, in most of the medical law cases brought to court, it is the insurance company that insured a particular doctor at a given time that is ultimately called to pay. In order for the institution of mediation to flourish in the area of medical cases, more clarity is needed as to to what extent the private contract that has been signed by the doctor and the patient after the completion of a successful mediation is binding and which, as long as one of the parties demands it, can be considered to be an enforcement order (article 9, L. 3898/2010). This document could not function as an enforcement order for a party who is not part of the agreement, as in the case of the insurance company, and I believe that this is a basic reason why mediation cannot be accepted by the majority of the doctors. Anything awarded by the court will be preferable than the result of the mediation, whereby the doctor him/herself will be called to pay, in contrast to the judicial procedure, during which the defendant doctor, calling for his/her right for third-party forced intervention and ancillary complaint, s/he renders the insurance company a party of the trial, which in the end is obliged to pay the amount.
Hence, to promote the institution, which is beneficial for the concerned parties, as well as for the attorneys themselves, we suggest an adjustment of the insurance contracts to clearly include a relevant term to the mediation since this process is being applied increasingly in our country. The doctors, in the new contracts signed with the insurance companies, could ask for the inclusion of a term that is relevant to the mediation process and the adjustment of the insurance relationship in case the doctor decides for a case to be subjected to the process. Otherwise, if there is no such provision, it will be hard for the doctor to propose mediation (or, respectively to accept such a proposal by the opposing party); thus, a great number of cases that could have ended peacefully, enjoying the privileges provided by this process that result in out-of-court solutions, are destined to be resolved in court. The medical associations in the country, having the role – among others – of informing their members, can do so as to the capabilities doctors have before signing an insurance contract, or even agree with insurance companies to recommend them to their members, provided that they meet a certain term: to allow in the insurance contract for the ability of a case to be brought to mediation. What is decided in the insurance contract regarding mediation – if, for example, each agreement will be obligatory for the insurance company or if it is just the participation of the insurance company that will be obligatory – does not concern this article as its aim is to raise concern about this issue and to clarify the options of the insurance company in case the two parties are willing to resolve the case out of court within the options provided by the law in effect regarding mediation.