Medical Negligence Claims and Mediation in Ireland – the Case for Reform.

Date: April 1st, 2011 | Filed under: Mediation & Company Law Articles | Tags: mediation, medical negligence

1. Introduction:

There are few areas of litigation as complex and emotionally fraught as that of medical negligence. Tension understandably abounds in an arena in which clinical mistakes by trusted medical professionals are alleged by aggrieved patients, or indeed in the worst case scenarios by the family of a deceased loved one. There is often a palpable sense of ‘us versus them’ as legal teams lead impugned nurses, surgeons or GP’s past ex patients and their relatives outside court rooms. The Plaintiffs are of course seeking a focal point at which to cast their blame, grief and anger, all manifestations of the hurt and pain they believe they would be without ‘were it not for them’. The Defendants’ professional reputations are often at stake.

The role of the courts of justice is to arrive at an equitable decision in favour of one party based on the reasoned judgement of an independent member of the judiciary.

In contrast the modus operandi of mediation is to reach a facilitated confidential and consensual settlement through a process that ensures that the parties to a dispute engage with each other in a non-adversarial setting that they reach their own negotiated equilibrium. It is that key element of ownership to the resolution process that can lead to a more sustainable outcome than one which is imposed on the parties by the courts.

2. The Mediation Process

Mediation should be considered at any stage of a dispute, even if proceedings have already issued[1]. The process can be broken into several phases. Firstly the mediator will open by explaining his/her role and will encourage the parties to explore all possible avenues of resolution. This is generally followed by an opening statement from each party which can be used as an opportunity to clear up any misunderstandings and provides an opportunity for a face to face meeting. Ideally this phase should be non adversarial[2]. Allowing an aggrieved party to ‘have their say’ on their own terms can be very beneficial in terms of emotional relief and closure.

The next phase is referred to as ‘exploration’ and involves the mediator meeting privately with each party to discuss their case and possibilities for settlement. As the mediator is bound by confidentiality, nothing disclosed in the exploration stage will be told to the other party without express permission.

This is typically followed by a negotiation between the parties, and should that be a success, a settlement is agreed.

While not all types of dispute are amenable to resolution by mediation (for example where a ‘court only’ remedy such as an injunction is required, or where a matter of public interest is concerned) it is arguable that certain medical negligence cases are. This is especially the case where more than a strictly judicial remedy Is sought such as an apology or a change in procedure or management structure. Indeed the Law Reform Commission categorises appropriate medical negligence disputes as among  those most suited to resolution through mediation[3].

3. Mediation and the current legislative framework

The increased significance of the role of mediation across different areas of litigation is manifest in the numerous legislative provisions and court rules that have come into force in recent years (for example under section 16 of the Civil Liability and Courts Act 2004 and Order 64A RSC the parties to a personal injuries action/ commercial dispute entered into the Commercial Court List respectively may be compelled to enter into mediation[4]). The most recent statutory recognition of the efficiency and effectiveness of mediation is Rule 56A RSC[5].

Specifically in the context of medical negligence, under section 61 of the Medical Practitioners Act 2007 the Medical Council, where it considers that a complaint is suitable, may refer a matter to resolution by mediation.  The Council have published mediation guidelines under section 62 of the Act. Commencement of mediation is subject to the consent of both the complainant and the medical practitioner the subject of the complaint and the potential remedy of payment of financial compensation is specifically excluded under the Act[6].

Significantly, the guidelines preclude recourse to the Medical Council’s disciplinary processes in the event of the terms of any mediated  agreement be breached. This could potentially act as a deterrent to mediation process, as could the fact that unlike the Civil Liability and Courts Act 2004 and Order 56A RSC (where a judge of his own motion can direct the parties to alternative dispute resolution) both parties must consent to mediation under the Medical Practitioners Act 2007.

3. The Advantages of Mediation over Litigation

Among the key advantages to mediation over litigation are lower costs, expedient resolution, the control/ownership the parties have over the process, flexibility of outcomes/remedies, the non adversarial nature of mediation, confidentiality and the potential for continuity of relations between the parties. I shall now examine each of these advantages in the specific context of medical negligence disputes.

3.1 Costs

While the number of medical negligence actions issued in the High Court is increasing[7], according to an analysis of figures published by the State Claims Agency (SCA) the percentage of potential claims that make it before a court is in the order of 1%.[8]. The determinative factor behind such a demonstrative barrier to the justice system appears unsurprisingly, to be financial. It is arguable that the costs associated with taking a minor claim would outweigh any potential award of damages. The English decision in Egan v Motor Services (Bath) Limited[9] is illustrative in this regard.  Ward LJ held that:

“The cost of… mediation would be paltry by comparison with the costs that would mount from the moment of the issue of the claim. In so many cases, and this is just another example of one, the best time to mediate is before the litigation begins. It is not a sign of weakness

to suggest it. It is the hallmark of commonsense. Mediation is a perfectly proper adjunct to litigation.”

An advantage of mediation is that by virtue of it’s consultative nature the key issues between the parties can be narrowed to those actually in dispute and those capable of being agreed upon. This has the potential to significantly enhance the efficiency with which any subsequent proceedings are conducted (and therefore reduce the costs of same) should the mediation process not culminate in a settlement.

3.2 Expedient resolution – ‘justice delayed is justice denied’

In the context of medical negligence claims in England, Lord Woolf in his ‘Final Report on Access to Justice’ contended that “the delay in resolving claims is more often unacceptable”[10] than delay in other litigation.

It can take years between the issuing of proceedings and handing down of judgement in a medical negligence action[11]. In contrast mediation typically takes place over one or two days. According to CEDR’s Fourth Mediation Audit, 75% of cases settled on the day of mediation with another 14% settling shortly thereafter.

3.3 Flexibility of outcome/ remedies

The vast majority of claims brought against medical professionals in the State are done so under the tort of negligence. The chief remedy available to a litigant in negligence is monetary compensation, or damages.

It is often then case that plaintiffs in medical negligence actions desire a much wider range of redress such as an apology, an explanation or an undertaking to overhaul a particular clinical process so that the circumstances that lead to the complaint cannot recur. To suggest that monetary recompense alone will adequately fill the emotional void left to the unfortunate families and victims of, for example, a fatal cancer misdiagnosis or death by misadventure attributed to a procedural flaw in a hospital is at best an optimistic and ignorant supposition[12].

While damages often do form an essential element of any settlement, the ‘power of apology’ has been recognised by the Law Reform Commission to the extent that it has recommended that “a statutory provision be considered which would allow medical practitioners to make an apology and explanation without these being construed as an admission of liability in a medical negligence claim”.

3.4 The parties retain control.

A high level of suspicion and animosity is often a feature of medical negligence claims. Self determination is a central tenet of mediation and “it offers procedural justice protections, providing parties with fairness and dignity…. and parties’ perceptions of procedural justice are enhanced when they actively participate in the process and voluntarily consent to an outcome that is free of any coercive influences”[13].

In retaining control of the process at all stages (for example the parties may agree on a specific mediator who has expertise in the particular area of dispute and are bound by nothing but their imaginations in terms of potential avenues of resolution) a vital sense of ownership is imputed into to the process.

3.5 Confidentiality & Continuity of Relations

The mediation process is entered into on a strictly confidential basis. Information exchanged and any potential settlement reached is on a strictly without prejudice basis. While this is clearly a mutual advantage, it can be especially attractive from the defendant’s perspective in a medical negligence claim.

Another key element to a successful mediation is the possibility of a continued relationship between the parties. In a profession which is often unfortunately characterised by staff shortages and protracted waiting lists such a possibility is undoubtedly beneficial.

4. Conclusion

The principle difficulties faced by the parties to a medical negligence dispute have been identified as follows:

1. i.            Delay.
2. ii.            The costs of litigation being so much as to outweigh potential damages.
3. iii.            The suspicion and lack of cooperation between parties is more intense than other areas of legislation.
4. iv.            Claims without merit are pursued, and clear cut cases defended for too long. [14]

As I have outlined above, and in direct response to these problems, mediation:

1. i.            provides a more expedient resolution than traditional litigation;
2. ii.            Costs are dramatically lower in mediation and the parties agree to share the costs equally as a prerequisite.
3. iii.            The mediation process is non adversarial and far more consultative in nature than litigation.
4. iv.            The ‘exploration’ phase of mediation allows for a ‘netting’ of issues on dispute. While all discussions and materials disclosed throughout the mediation process are confidential, the parties may agree on certain matters. In the event that mediation breaks down matters in dispute have been narrowed thus potentially saving time and costs in a subsequent litigation. As a result the issues in dispute can be explored in more detail and the parties are encouraged to examine the strengths and weaknesses of their case from different perspectives, thus reducing this risk.

Some commentators have suggested that while mediation is certainly an option to litigants in certain medical negligence actions under the current legislative framework, there is scope for the process to play a more active role[15].

The SCA’s principle objective is to provide “a risk management advisory service with the aim of minimising future litigation”. It is suggested that significant strides towards meeting this objective can be made in adopting a framework that directs the parties to disputes to mediation before litigation is commenced[16].

Legislative reform that proscribes mechanisms whereby as a prerequisite to litigation the parties must explore the option of mediation and indeed that creates an imperative on the medical community to build mediation into its dispute resolution procedures would be a welcome step in tackling the current barriers to effective dispute resolution as outlined above.

The advantages of mediation over traditional litigation are clear and it is suggested can be effectively applied to medical negligence disputes. As Ward LJ succinctly put it:

“The skills are now well developed. The results are astonishingly good. Try it more often.”[17]

James Morrin

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[1] Although it will typically speed up the process and allow the parties to assess the risks of litigation if an advanced stage of discovery has been reached

[2] It is not unusual for a mediator to meet with the parties independently before a face to face meeting in circumstances where there may be heightened animosity/ tensions between them.

[3] LRC 98-2010 at 1.12.

[4] See also Pharmacy Act 2007 s 37

[5] Under s2 a court can of its own motion, or on the application of any party make an order to the effect that the parties engage in ADR. This is consistent with the EU Mediation Directive (Directive 2008/52/EC) which aims inter alia to ‘simplify and improve access to justice in civil and commercial matters’ (Art 3).

[6] S 62 (2) Medical Practitioners Act 2007. The consent of both parties is a feature of s 37 of the Pharmacy Act also. The author suggests that while mediation can generally be more successful if both parties are willing to cooperate, the preclusion of mediation as a possibility before litigation simply because of one party’s hesitance could at least be mitigated by a compulsory briefing on the advantages and procedures of mediation.

[7] According to the Courts Service Annual Report 2009, in 2008 481 High Court medical negligence actions were commenced. The 2009 figure is 529 which corresponds to an annualised increase of 9.9%.

[8] Based on figures in Eithne Donnelan’s article in the Irish Times dated 9th October 2009 “More than 4000 hospital incidents occur every month” (of 282,045 reported incidents between 2004-2009 only 3,522 led to civil proceedings. The State Claims Agency’s March 2009 newsletter shows that in 2008 of 83,661 reported incidents and only 521 claims were initiated..

[9] 2007 EWCA Civ 1002

[10] Accessed at http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/sec4a.htm

[11] Taking the time between issuing proceedings and delivery of judgement in 3 recent High Court medical negligence actions for example: Cunningham v Governor & Guardian of the Coombe Lying In Hospital & Ors 2005 IEHC 354] (unreported) – 4 years 2 months; Myles v McQuillan & Anor [2007] IEHC 333 (unreported) – 3 years 6 months; Dunne v Eastern Regional Health Board & Ors [2008] IEHC 315 (unreported) – 6 years.

[12] A recent example of the potential for early steps toward resolution based on apology is illustrated in the case of Sean Ross McGowan, the toddler whose case was settled on 14th January 2011. His father John McGowan “criticised the HSE for not apologising for what had happened”.

[13] Nolan-Haley ” Self-determination in International Mediation: Some Preliminary Reflections”(2006) 7 Cardozo J Conflict Resol 277 at 278.

[14] Lord Woolf, Access to Justice Final Report (London; HMSO, 1996, Ch 15 (2)

[15] Mills, Simon “We Need to Talk”—Mediation in the Clinical Setting in Ireland (2010) 16(2) MLJI 64.

[16] Indeed in its 2010 report (LRC 98-2010 at 7.12) the Law Reform Commission has recommended that “the State Claims Agency should, where appropriate, consider and attempt ADR processes, including mediation and conciliation, in the resolution of medical negligence cases.”

[17] 2007 EWCA Civ 1002 at para 53.