Mediation can be the path to satisfaction in negligence claims

Published on Monday 10 August 2009 20:44

IN ARGUING against "no-fault" compensation for medical negligence claims, Frank Maguire (Medical Matters, 28 July) raises interesting issues.

He urges retention of the current system of court litigation for medical claims, because this delivers "basic justice", in that those who have been negligent in treating patients are held "directly responsible".

There are well-recorded difficulties with use of litigation to address such claims. As long ago as 2002, the Royal Society of Edinburgh published a report in which it was said court should be a last resort, because court actions in medical claims can last a long time, be stressful for all concerned, often do not give people what they really need or want and, because they tend to induce defensiveness in the medical profession, may not offer an environment in which there is real learning.

They are also expensive – whether in lawyers' fees or in time and energy.

Research has shown, in medical negligence claims, while many do need or want monetary recognition, it is often secondary to a desire to be given an explanation for what went wrong, to receive acknowledgement of the impact the event has had and a reassurance that it will not happen again to others.

The opportunity to talk, understand, apologise or forgive is often underestimated. And, in reality, more than 90 per cent of court actions are settled by insurers or through a professional indemnity arrangement – often months or years after the initial incident.

The real difficulty with using courts is it forces people to operate in a culture where "fault" is the context. The quest to find it assumes "fault" is a relevant concept in addressing the consequences for a patient or family affected by an adverse medical event. It is not at all clear that is so.

Perhaps it is time to consider a shift from allocating blame, especially in a world where medical matters are complex and the needs of the victims are better understood. The classic response of seeking to measure loss in money terms is that of a "litigation culture", but that is, in many ways, unsophisticated and unsatisfactory.

This is not necessarily an argument for "no-fault" schemes, but the emphasis is on money and the assumption may still be that money will serve as a cure-all. It probably won't. To be effective, any scheme needs to address the non-monetary needs of patients and others.

Paradoxically perhaps, by addressing these, the perceived cash value of a claim may diminish. This does not necessarily lead to "under-compensation", as Mr Maguire puts it, but rather a recognition that money is not the only way, and is often an inadequate way, to deal with a medical accident.

Mr Maguire's point that there needs to be some recognition of responsibility for what happened is a serious one. So, alongside any no-fault scheme, there would need to be proper investigation and a clear understanding of what, if anything, went wrong, with learning translated into action to minimise the risk of it happening again.

That needs openness and a willingness to acknowledge what might have been done differently – surely more likely where blame is not an issue.

As Mr Maguire says, "those treating us… should know that they should not act negligently". One assumes doctors know this and do not need the threat of a court action to impress the responsibility upon them.

No doubt, for serious cases, the medical profession retains its disciplinary powers for use in appropriate circumstances and perhaps the possibility of referral from a no-fault system would need to be considered.

Mr Maguire raises important questions about "no-fault" that should be answered. However, defaulting to the courts, unless as a last resort, seems to be an unsatisfactory response.

The Royal Society report concluded that the starting presumption for the resolution of all medical negligence cases should be the use of mediation.

That was because it can offer more flexible and constructive solutions, reduce delay and stress, help maintain or restore professional and personal relationships and provide greater scope for patients and families to participate and express their feelings.

Following that report, NHS Scotland initiated a pilot scheme to use mediation in negligence claims. This was poorly designed and lacked understanding of how mediation could help to bring a swift and effective conclusion.

It has been woefully under-used. Let us hope, in the review under way, the task force of experts will revisit this possibility also.

&#149 John Sturrock is a mediator and chief executive of Core Solutions Group