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Mediation, clinical negligence claims & the medical profession
A policy paper from the BMA Medico-Legal Committee
May 2001

The context of this paper
Negligence claims are increasing dramatically, as are the costs of damages and of defending claims, to the financial detriment of the NHS and claims funders, and with a consequent increase in stress on clinicians under scrutiny. The NHS medical negligence mediation pilot scheme was launched in April 1995 as a response to the criticisms being made of the way negligence claims were managed and concerns about their increasing incidence.

The Mulcahy Report on the NHS Mediation Pilot(1) reports that a 70% sample of claimants were totally or very dissatisfied with the claims process, even where compensation was awarded. Data collected for this report revealed that plaintiffs feel that health authorities, trusts and solicitors are overly defensive in their management of medical negligence cases. Unsurprisingly, the medical profession too has expressed concern about the current situation.

The BMA Medico-Legal Committee has asked the Department of Health about developing non-adversarial dispute resolution of such claims (i.e. a "no-fault" system), however it is clear from the Ministerial response that the existing tort system is to be used for the foreseeable future, with the additional tool of mediation now being available.

Accordingly, BMA Council on 6 December 2000 resolved that:

No further action be taken on a non-adversarial dispute resolution scheme, but that efforts be concentrated on reforms to the tort system, mediation and structured settlements.

It should be noted that the Legal Services Commission (LSC, formerly the Legal Aid Board) is issuing guidance to LSC funded claimants and their lawyers. This will require serious consideration to be given to mediation throughout the life of a claim, with the LSC requiring a claimant to mediate if necessary. Also, the National Health Service Litigation Authority (NHSLA) has requested reports from its panel solicitors on the use of mediation by them. Furthermore, there are reports that the High Court Masters assigned to clinical negligence claims are now making orders to stay such proceedings for mediation.

The Medico-Legal Committee has therefore looked at mediation to see what value it adds for individual clinicians and their patients as well as for the health sector as a whole, and whether the medical profession should give active support to the mediation of clinical negligence claims.

What is mediation?
Mediation is a voluntary process whereby the parties meet privately with a neutral mediator who facilitates a negotiated agreement, which then binds the parties. It is seen as a much more constructive and less adversarial process than conventional litigation. If agreement is not reached, the parties are free to initiate or continue with litigation. The Civil Procedure Reforms (CPR) in England & Wales make it clear that trial is to be a last resort, and will encourage the use of mediation if necessary by court order(2)

Mediation has been used for commercial and family disputes in England and Wales for over 10 years and is beginning to be used in Scotland and Northern Ireland. It has been extensively used for much longer in medical malpractice suits in the USA, Canada, Australia and New Zealand, where it is an integral part of the litigation scene.

Cases suitable for mediation
During the NHS Mediation Pilot Scheme a wide range of people’s views were canvassed on the question of how cases which are suitable for referral to mediation can be identified. Some people placed emphasis on factors to do with the characteristics of the cases, such as the amount of money claimed and the specialty involved.

Other categories of suitable cases were those involving emotional overlay; cases where non-legal remedies such as apologies and explanations were being sought; claims where the parties wanted greater involvement in case management; those where speedier resolution was required; and those where the parties had a long-term relationship with the healthcare provider.

Cases seen as unsuitable for mediation fell into three categories: cases which lacked settlement potential, such as those where there was a desire to set a precedent; those where the claim value was high(3) and those where there was insufficient information on which to base settlement negotiations.

The benefits of mediation
These have been demonstrated by the Mulcahy Report(4) despite the small sample of 12 cases investigated. All 12 cases settled; 11 with payments and other non-monetary benefits conferred to claimants, and 1 withdrawn, though with a significant non-monetary benefit conferred.

The importance of non-monetary benefits such as apology, explanation and reassurance of changes in procedure, together with the opportunity for parties (patients and clinicians alike) to be heard informally and privately, are all substantiated, as is the possibility of creative outcomes. 8 cases studied were mediated before proceedings were issued.

While there are many potential benefits for both claimants and the healthcare professionals involved, the making of a complaint or claim is highly disruptive to the doctor-patient relationship. It usually eradicates any meaningful clinical or even personal communication between them while the claim is being made, a process which often lasts several years. Communication is usually never regained. If the parties do meet, it is in the highly charged circumstances of trial. The patient may have few alternative sources of care other than the trust or the GP being sued, but the clinician is effectively debarred from providing such care for the patient.

The mediation process:

• mediation can be set up speedily, often before proceedings are issued;
• the process is entirely confidential and without prejudice, and is thus largely risk-free even if the claim is not settled;
• the safe private surroundings enable claimant and clinician to re-establish communication in a direct and positive way, far more akin to doctor-patient than defendant-claimant;
• the process is informal yet managed by a neutral mediator/facilitator, who takes responsibility and control of the process but only to enable the parties to craft their own solutions if they so wish, as the mediator makes no finding or recommendation;
• it is not always essential for a defendant lawyer to attend, especially in pre-proceedings mediation (much more possible since the Pre-action Protocol) at which a Trust Risk Manager or Defence Organisation representative might, with training, undertake the role: claimants will almost always need to be legally represented to ensure a properly binding settlement is reached;
• claimants have the opportunity of being heard and of venting their feelings at a guaranteed “day in court”; if the defence team listens and responds respectfully, this can be very positive;
• clinicians can explain what they did and why, express regret and offer an apology (if they wish) without any necessary or consequent admission of negligence or causation of injury, and contribute directly to any debate between the parties and expert witnesses;
• the doubts expressed in the Mulcahy Report as to the cost of mediation are open to question, in particular the necessity for “front-loading” the work in clinical negligence litigation because of effect of the Pre-action Protocol(5)

• a “one-stop” outcome is possible, unlike the complaints and the litigation processes which respectively deliver non-monetary and monetary outcomes only, neither delivering both;
• imaginative outcomes which can benefit both parties (and the NHS) can be devised;
• mediation can lead to the withdrawal of a claim;
• the true priority for claimants between monetary and non-monetary outcomes can be met.