Mediation for medical negligence

A Consultant Nephrologist writes…

The rising tide of medical negligence litigation currently consumes about 5–10% of the NHS budget, so that it is a source of concern for doctors, hospitals, defence organisations, patients and government alike. In fact, only the lawyers seem able to face it with equanimity. NHS Resolution has just published the results of a two-year study of the use of mediation to resolve clinical negligence disputes, and the results are both fascinating and encouraging.

Between December 2016 and March 2019, 606 cases of medical negligence were mediated of which the vast majority were clinical, with only a very small number of non-clinical cases (personal injury) and cost disputes. About three quarters of the cases were successfully resolved either on the day of mediation or within four weeks, and most of the cases had already progressed significantly towards court. Around 30 cases are currently being mediated each month and the cost savings so far have been significant. Most of the claims (213 cases) received damages between £50–250 000, although in 84 cases the award was greater than £1 million. Only six cases actually went to court after a failed mediation attempt, with an equal success rate for claimants and defendants.

The presence of a clinician from the Trust at the mediation was a strong predictor of success, reflecting the importance of apology, explanation and prevention of future harm to other patients (rather than money) as the motivating factor that leads to complaints. Most patients and all defendants had lawyers present at the mediation, although there was some suggestive evidence that the presence of counsel may not actually be conducive to a settlement on the day. Some claimants may be intimidated by the presence of lawyers if it impedes the informality of the mediation process.

It seems clear that the ‘Alternative Dispute Resolution’ offered by mediation is about to significantly alter the current clinical negligence scene in this country. Although the vast majority of trained mediators are lawyers, this needs to change for the special circumstances surrounding medical negligence. For example, mediators that are also clinicians can bring an additional focus to the claim that is more likely to satisfy the demands of the aggrieved patient.

These issues are due to be discussed at an important meeting at the Royal Society of Medicine on March 26, 2020 for which the target audience includes clinicians, Trust members, medical directors, expert witnesses and lawyers.

What are your thoughts on the impact of mediation in future clinical negligence cases? Please feel free to comment in the section below. 

Comments (5) Add yours ↓
  1. Nicola Stingelin Ethicist

    Many thanks. Agreed

    The role of meditation in the medical field when a lack of consensus threatens to erupt into a situation in which all parties suffer is important.

    Interestingly the author was at the House of Lords a few weeks ago for the second reading of the “Access to Palliative Care and Treatment of Children” Bill (“Charlies Law”) that has now passed to the committee stage.
    Following the death of Charlie Gard last year from a rare genetic illness, Charlie’s parents are pressing for ‘Charlie’s Law’ to be introduced. One aspect of this is for there to be a requirement that the parties try to resolve disagreements as early as possible by way of independent mediation, before applying to the court.

    February 25, 2020 Reply
  2. Hugh Whitfield Director IMNR

    The findings that have been highlighted in this article are of the very greatest importance. The annual costs of medical negligence are £9 billion. The provision set aside by NHSR is £83 billion. These costs are unsustainable.
    The role of mediation offers the best hope for reducing these costs. However, mediation is currently only an option when a complaint has escalated through to NHSR. PALS has not provers to be a way forward. As identified in this article, the need is for independent mediation to be available at the time that the initial complaint is made.

    These issues will be explored at a Meeting at 1, Wimpole Street, home of the Royal Society of Medicine on Thursday 26 March 2020. To attend this meeting visit imnr.org.uk/meeting.

    February 25, 2020 Reply
  3. Julian Shah Consultant Urological Surgeon

    This is a fascinating insight into the process of Mediation to help resolve clinical claims. I would be very supportive of this approach which would cause a reduction in stress for the patient and the clinicians involved. The potential saving to the NHS would also be significant. Using experienced clinicians to help with the process is necessary.

    February 29, 2020 Reply
  4. Roger Kirby Professor of Urology

    The NHS in England faces paying out £4.3bn in legal fees to settle outstanding claims of clinical negligence.

    Each year the NHS receives more than 10,000 new claims for compensation.

    This figure includes all current unsettled claims and projected estimates of ones in the future.

    The Department of Health has pledged to tackle “the unsustainable rise in the cost of clinical negligence”.

    Estimates published last year put the total cost of outstanding compensation claims at £83bn.

    NHS England’s total budget in 2018-19 was £129bn.

    Doctors at risk of litigation are calling for “a fundamental” reform of the current system.

    Do come along to this meeting which is seeking to address these issues and concerns.

    February 29, 2020 Reply
  5. Julian Shah Consultant Urological Surgeon

    It has always struck me that mediation is a way forward to resolve many cases that lead to a medical negligence claim. The time, anxiety and stress and costs involved in medical negligence cases are great and each of the aspects could be reduced if mediation could be used instead of an adversarial process. A discussion around the issues needs to take place and hopefully provide a way forward. .

    March 2, 2020 Reply

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