A review of Alternative Dispute Resolution and Mediation in Clinical Claims.

This paper has for its purpose the review of the role of Alternative Dispute Resolution (hereafter referred to as ADR), in clinical malpractice claims specifically, in light of the recommendations of the recent Law Reform Commission Report. In this 2010 report, entitled “Alternative Dispute Resolution: Mediation and Conciliation”, the Commission recommended that it would be appropriate for the State Claims Agency to introduce the optional avenue of ADR promoting the use of mediation to litigants prior to the commencement of legal proceedings. The Commissions made this recommendation in light of the lengthy and indeed costly factors commensurate with initiating court proceedings. This paper will advocate for the introduction of ADR in clinical claims on the premise that in addition to fiscal and delay impediments, introducing recourse to ADR in these claims could potentially eliminate the cumbersome and time consuming task of the judiciary to wade through a mass of medical laden terminology and technical procedures. The introduction of ADR in clinical claims would effectively side step this hurdle, instead out sourcing this task to an expert mediator, fluent in the given area of medical practice. The writer acknowledges at this juncture, that in all clinical claims, expert opinions are adduced on behalf of both the applicant and the defendant. However this tactic has not always been consistent in advancing matters to reach an equitable conclusion. As noted per John Healy introduction of expert evidence in clinical claims has had the effect of “flooding the courts with big battalions of expert witnesses” in absence of assisting the judiciary to decipher the material facts of any given malpractice claim. This paper does not suggest the removal of the judicial function from the sphere of clinical claims. Indeed, to do so would unquestionably frustrate the initial purpose of medical malpractice cases – that being the administration of justice and the discharge of legal rights. However, instead while the Court would retain its role in its discharge of the legalities of the matter, the expert medical mediator would have for their effect to unravel the ambiguous blur of unfamiliar medical jargon and practice. In my view, this strategy if adopted would merely serve as to ensure the consistent discharge of legal rights via correct application of the law and providing the judiciary with a more innate understanding as to what exactly occurred.

I am conscious at this point that this paper may appear somewhat on the brink of being irrelevant to the subject matter of ADR. However, my reasoning for adopting the ADR theory is that it provides the perfect framework within which to execute this strategy. Within an ADR forum, all involved parties have the opportunity to engage in an informal basis, and conduct a transparent investigation as to the events which occurred in the course of the patient’s treatment. Additionally, this would provide the injured party with a more tangible strategy in the resolution of their clinical claim. By this I mean, customarily the tendency exists for the applicant to fade into the background, while counsel for the parties engage in legal battle contingent on technicalities and procedural facets. This is reflected in the view of the European Commissions Green Paper on Alternative Dispute Resolution which states: “Alternative Dispute Resolution is an integral part of the policies aimed at improving access to justice. In effect they complement judicial procedures, insofar as the methods used in the context of ADR are often better suited to the nature of the disputes involved. ADR can help the parties enter into dialogue, where this was not possible before”.

As previously outlined, the impetus of introducing ADR in clinical claims is primarily based on creating a more appropriate and indeed, informed forum to tease out the intricate characteristics of medical procedure and terminology. I think it appropriate to acknowledge at this point that it is universally accepted that almost all medical negligence actions have for their source a medical expert opinion affirming such malpractice. However, the writer’s rationale in side stepping this factor as a point of priority is that customarily such opinions result in a ‘battle of the experts’ type showdown – this serving as the yardstick of determination in establishing whether a reasonable practitioner did in fact fail to meet the requisite standard of medical care. John Healey’s Medical Malpractice Law, asserts “it is an approach that underscores the complex factual nature of medical negligence claims, and the need to attain a reasonable and credible evidential basis to support the allegations prior to instituting the proceedings”. Although the reasoning of this opinion is uncontested, my reasoning for preferring expert evidence derived from ADR is that the latter strategy would adopt the format of a fact finding mission in order to illicit information in a transparent and practical manner as to series of medical procedures and decisions engaged in by the relevant parties. A likely effect of such an approach would be to encourage the Practitioner to divulge all information within their knowledge rather than the obvious temptation to suppress information in adopting a subversive approach – no doubt a reasonable reaction to impending liability and its consequential aftermath. Such an elaborate and informed overview of events would merely serve to determine a more accurate degree of liability (if any), on which a proportionate compensatory measure could be constructed. Furthermore, should a comprehensive review be provided as to the shortcomings and errors pertaining to the clinical claim in question, this would undoubtedly afford an opportunity to rectify such pitfalls and exercise a wave of both remedial and pre emptive action to avoid reoccurrences into the future. This is another strong contention for ADR opportunities in medical malpractice claims – that being the familiar “settled without admission of liability” conclusion – currently rampant in the litigation sphere. Not alone does this trend suggest a shut shop pertaining to review and pre emptive reform on the medical front, but it voids all potential acknowledgements or dare I be as blunt to suggest an apology to the applicant.

The significance of apologies or even recognition of injuries caused is reflected in the Law Reform Commissions Report in 2009, whereby  it was remarked “Doctors and other healthcare professionals have traditionally being reluctant to offer an apology to a patient or the patients family fearing that it would be taken as an admission of liability”. However as per the 2010 Paper “the Commission is satisfied that empirical evidence is emerging that supports the view that apologies can reduce litigation and promotes the early resolution of medical disputes”. In furtherance of this viewpoint, the writer again advocates that the appropriate forum for satisfying both acknowledging medical misadventure and proffering an apology is that of ADR.

Furthermore, as noted in an opinion advanced by Galton entitled ‘Mediation of Medical Negligence Claims’ “the enhanced communication provided by mediation allows for conciliation, healing, restoration of relationships, settlement and the avoidance of a destructive process that may adversely affect the emotional and physical well being of all the participants”.

To revisit the title of this paper, the writers proposition for a more active inclusion of ADR mechanisms not alone rest on the need to streamline the application of medical evidence into a more candid and unadorned format, but also the potential opportunity to mitigate the costs of such actions. This would afford an opportunity for The State Claims Agency to assess whether there is merit associated with the medical negligence claim that is being advanced and if there is such merit, seek to negotiate an early settlement thereby minimizing legal costs. Furthermore, in relying on the expert mediators independent findings, a more proportionate and appropriate compensatory order would follow – providing a change in direction from the current metaphorically termed ‘deep pocket theory’ of compensation. Additionally, as asserted by the 2008 report of the ‘Commission on Patient Safety and Quality Assurance Buildings Culture of Patient Safety’, “the system of compensation for medical negligence in existence in Ireland is not conducive to an open and honest communication process”. As stated above, such elements are necessary in both acknowledging patient injury and in the pursuit of pre emptive strategies to avoid repetition of such errors in the future. This opportunity is all to often lost in the furore of legal proceedings as most candidly illustrated by Justice Carter in Huffman v. Lindguist – “ Physicians who are members of medical societies flock to the defence of their fellow member charged with mal practice and the plaintiff is relegated for his expert testimony, to the occasional lone wolf or heroic soul, who for the sake of truth and justice has the courage to run the risk of ostracism by his fellow practitioners and the cancellation of his public liability insurance policy”. Such sentiments were emulated by Mr. Justice Lavan in the case of Coughlan v. Whelton and Bennett where he frowned upon the “somewhat theatrical presentation given by one of the plaintiffs experts at hearing which had been contrived more to confuse rather than to assist the court and that the interpretation put on medical evidence adduced by the plaintiff experts had been coloured by hindsight”. Alternatively, if the forum for dispute of such medical content were relocated to that of an ADR setting, in a less charged and more medically fluent atmosphere, it is my opinion, that there would be an enhanced prospect to illicit information relevant to the given case in absence of court room dramatics and hence estimate damages more accurately commensurate with the degree of injury occasioned.

To conclude, as reasserted throughout this paper, it is not the intention of the writer to undermine or indeed underrate the function of the judiciary in clinical claims. However for reasons of efficiency and aptness, I assert once again that the correct forum for the evaluation of medical evidence is within the forum of ADR in the presence of an independent medical mediator. Not alone, would such an approach serve to administer review of medical evidence adduced in a more expeditious manner, but also by more informed and fastidious means. Additionally, as illustrated in case law, reliance on medical experts has not always proven successful. The purpose of such experts is to assist in conducting a pragmatic review in the actions of the practitioner in question. However, as demonstrated in a court room setting, this purpose can all too often play second fiddle to an opinion charged with hindsight and dramatics. This is not to say that the suffering and affliction of the injured party should at all times be portrayed in a reticent and modest manner. However, there does exist a balance – such balance being subject to a greater probability of realization in the presence of an independent, objective, expert mediator. As asserted, the task of deciphering medical terminology and practice is an onerous one. The writer submits the actions of the judiciary in entering such unfamiliar territory have consequentially resulted in a mass of inadequate and disproportionate compensatory orders. Not alone is this acknowledged by the 2008 report of the Commission, but by the taxpayer, who for all intents and purposes is the fiscal source of such orders. In absence of medical know how, underscored by occasional expert hysterics, conclusively triggers a outlandish compensatory award, so broad in its remit as to ensure all potential liability (both probable and improbable) is accommodated. Opportunities to effect a pre emptive and remedial strategy to avoid similar future medical misadventure are lost and more significantly, the patient is deprived of any genre of apology, an omission devoid of being price tagged.

Ultimately, I contend the ADR forum, as affirmed by the Law Reform Commissions report of 2010, would serve as a functional and appropriate method by which to investigate medical practice and hence safeguard the legal rights of all involved parties by presenting the court with an impartial and even handed opinion. This forum could be instigated prior to court proceedings on the election of the parties involved, or alternatively at the discretion of the Judge in the form of outsourcing expert opinion. Without doubt, such an approach could only serve to rectify the somewhat disoriented methodology of recent clinical claims.

Anne Maree Igoe