MedMal Disputes – Negotiating a Settlement is Still the Best Method of Resolution

By Hon. Marsha L. Steinhardt (Ret.) | NAM (National Arbitration and Mediation) | March 11, 2024

Someone told me, long ago, that the days go slowly, and the years fly by.  No statement can be more accurate when referring to the past four years.  Because on Tuesday, March 17, 2020, while still serving as a Justice of the Supreme Court, Kings County, I, along with all my colleagues, was the recipient of a terrifying email – “All Judges are directed to remain at home until further notice.”  The 2019 Novel Coronavirus pandemic (COVID) had blown its dreaded breath at the Court System and my daily routine, as Judge in Charge of the Medical Malpractice Conference and Settlement Part, abruptly came to a crashing halt.

But staying at home did not translate to “vacation.”  My friends, on both sides of the fence, were facing a financial crisis, by virtue of the courts being closed.  Soon after the dreaded email, my Law Secretary, Alexis Riley and I arrived at a plan.  We contacted the attorneys we knew, plaintiffs and defendants, who had cases pending before me, via email or phone, and suggested conferencing with the Court, remotely.  It was an idea met with universal enthusiasm. 

Ultimately, with many stops and starts, our plan took shape.  Initially we recommended that the attorneys search their files and make a list of all the cases they had pending in the Part.  They were to forward the list and we would arrange for a conference date, mutually convenient for all the participants involved.  By virtue of everyone being in “lock-down” mode, the hour of the day when we began was not a factor and, at times, we would commence our discussions in the middle of the afternoon.

We were inundated with requests.  In the beginning months many of the cases were nowhere near the trial stage.  Frequently, these cases found a path to an early resolution during our conferences, as both sides were eager to dispose of the matter without too much time being spent on discovery.  The attorneys and I were able, with little fanfare, to cut to the “heart of the matter” and to get meaningful conversations going.

Although the remote set up took a bit of getting used to and working from home at my dining room table was a bit distracting in the beginning, eventually everyone seemed to get the hang of it.  The same basic negotiating skills, used daily in the courthouse setting, reemerged immediately.  Listening, patience, and keeping confidences remained at the forefront of every discussion.  Knowing that the lawyers were forthcoming made the settlement process a pleasant experience.

It appears, now, in 2024, that the court system is “up and running,” but to the best of my knowledge, things have not returned to the pre-covid arena. Trials are taking place, but not at the same rate as before.  At this moment in time, a negotiated settlement appears to be the most viable alternative, as it did during the pandemic.  Remote conversations manage to get the job done nicely.  To not be talking seems unwise.  To be talking in the mediation setting should, at minimum, bring the parties closer to the goal of resolution.

I retired from the bench on December 31, 2020, after a strange year spent at home on my computer, talking to lawyers about settlements daily.  Many of the cases, as I like to say, “went away.”  I, on the other hand, have not!  I am currently a neutral with NAM (National Arbitration and Mediation.)  I hope that my thoughts and opinions may encourage you to seek a speedy end to some pending matters.

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Hon. Marsha L. Steinhardt (Ret.) is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel. Her remarkable 31-year judicial career includes 26 years spent as a Justice of the Supreme Court. She was assigned to the Medical Malpractice Trial Readiness Part, Kings County, where she conferenced every post Note of Issue medical malpractice case in Brooklyn, resulting in the resolution of a significant number prior to trial. While on the Supreme Court bench, she also presided over many case types, including personal injury, product liability, premises liability, and several matters involving complex commercial litigation. Justice Steinhardt is available to arbitrate and mediate cases throughout the New York State.