Mediation and Clinical Negligence: can mediation successfully address the objectives of clinical neg

1
Mediation and Clinical Negligence can mediation
successfully address the objectives of clinical
negligence claimants?

• Dr Brenda Daly
• Lecturer in Law
• School of Law and Government
• Dublin City University, Ireland

2
Objectives

• Can alternative dispute resolution mechanisms
  replace litigation as a means for handling
  clinical negligence claims?
• What impact have the civil justice reforms had on
  the use of mediation?
• What do claimants want?
• Can mediation accommodate those particular
  objectives identified as pertinent to claimants?

3
Why consider alternatives to litigation?

• Pragmatic difficulties with litigation
• Too few claimants are able to litigate
• Issues of eligibility
• The Bolam test proving negligence
• Expert evidence
• Costs
• Delays
• Civil Justice Reforms

4
Lord Woolf (1996) Access to Justice report
Civil Justice Reforms

• Lord Woolfs primary concern was with access to
  justice but he focused particular attention on
  medical negligence during the second stage of his
  inquiry.
• Lord Woolf acknowledged that litigation may not
  be the most suitable method for resolving
  disputes.
• Use of alternative dispute resolution (ADR) is
  actively promoted within the Civil Procedure
  Rules.
• Pre-Action Protocol for the Resolution of
  Clinical Disputes.

5
Mediation as a suitable alternative to litigation

• Acknowledged advantages are that
• It is quicker cheaper than litigation it is a
  voluntary, consensual process
• Mutually acceptable settlement
• Flexible informal
• Outcomes can be creative specifically designed
  to deal with the particular needs interests of
  the parties concerned
• Encourage communication better relationships
  between the parties
• Ensure greater compliance with the settlement
• Allows parties to focus on the issues not
  solely on their rights
• Less stressful

6
The patient perspective

• Patients alone can explain their dissatisfaction
  with the healthcare that they have received.
• Importance of patient involvement concerns
  about accountability.
• Emergence of the concept of patient rights
• World Health Organisation European Charter of
  Patients Rights (2002)

7
Claimants expectations

• A need for an explanation
• Compensation
• An apology
• The desire that the same mistake will not happen
  to others
• Provision of an alternative, and/or future
  treatment strategy
• Feelings that the system should be exposed as
  deficient
• Desire to obtain a definite outcome sooner rather
  than later
• Reluctance to engage in the formality, risk and
  expense of court proceedings
• Desire to minimise hurt to others such as
  doctors/nurses

8
Claimants objectives

• To prevent a recurrence
• An explanation
• An apology

9
Claimants objectives

• Disciplinary action
• Compensation

10
Conclusions Mediations capacity to accommodate
claimants objectives

• Facilitates explanations regarding the clinical
  incident
• Has the ability to deal with future diagnostic
  treatment plans sought by the claimant
• Can provide some element of compensation
• Has the potential to allow for the provision of
  an apology
• No guarantee that claimants objectives will be
  delivered
• It is not conducive of public accountability no
  formal links exist between professional
  disciplinary sanctions the mediation process

11
Acknowledgements contact details

• Acknowledgements This presentation is jointly
  funded by DCUs Faculty of Humanities Social
  Science Research Travel Programme 2007-2008 and
  the School of Law and Government Research Travel
  Programme 2007-2008.
• Contact details
• brenda.daly_at_dcu.ie
• School of Law Government, Dublin City
  University, Ireland