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.