Mediation in medical disputes

Dr Milton Lum

 

Adverse events in health care, in contrast to the complications of disease, are not uncommon. Studies from the United States, United Kingdom and Australia reveal that they constitute about 10% of all hospital admissions. There is no national data in Malaysia. The incidence in Health Ministry hospitals is about 6-15% of hospital admissions but there is no data from private hospitals.

Adverse events may be preventable or non-preventable. Some are incidental and some are due to negligence, which may be commissions or omissions. As the causes of adverse events are multiple, they will continue to occur despite the patient safety efforts of healthcare providers.

When things go wrong, some of those affected will complain to the Health Ministry and/or the Malaysian Medical Council (MMC); others will resort to litigation. The MMC is not ordinarily concerned with allegations of negligence unless there is an element of misconduct by the doctor.

Data from various countries indicate that about a fifth to a quarter of all adverse events may be due to negligence.

It has been reported in many studies that the majority of victims of medical accidents want an honest explanation for what went wrong, a genuine apology, reassurance that the same event will not happen again, and in some instances, compensation.

Vincent, Charles; Young, Magi; and Phillips, Angela in their landmark study “Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action” (Lancet 1994; 343: 1609-1613) concluded that the main reasons for litigation were:

  • accountability - the wish to see staff disciplined and called to account;
  • explanation - a combination of wanting an explanation and feeling ignored or neglected after the incident;
  • standards of care - wishing to ensure that a similar incident does not happen; and
  • compensation - wanting compensation and an admission of negligence.

Christopher B-Lynch, Adeyemi Coker and John Dua analysed 500 medico-legal claims and found that 46%were due to misguided allegations, 19% to incompetent care, 12% to errorof judgement, 9% lack of expertise, 7% failure of communication, 6%poor supervision and 1%inadequate staffing. (RCOG 1996 Br J Obstet Gynaecol 103; 1236-1242) They concluded that “because of the high percentage (46%) of misguided allegations, an alternative course of dispute resolution must be a realistic way forward.”

Many neutrals state that the legal process cannot provide what victims of medical accidents want. Litigation incurs expenditure and takes a long time to conclude. The process, which encourages secrecy and entrenched positions, does not result in an amicable, early or satisfactory resolution for many. 

The guiding principle of Lord Woolf’s report Access to Justice Report (HMSO London 1996) i.e. “Effective access to the enforcement of rights and the delivery of remedies depends on an accessible and effective system” identified the following principles as important for the delivery of justice:
Just;
Fair and be seen to be so by:
(a) ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights;
(b) providing every litigant with an adequate opportunity to state his own case and answer his opponent’s;
(c) treating like cases alike;
• Procedures and cost should be proportionate to the nature of the issues involved;
Speedy;
Understandable to those who use it;
Responsive to the needs of those who use it; and
• It should provide as much certainty as the nature of particular cases allows.

Mediation, a mode of alternative dispute resolution, is increasingly used in many jurisdictions as an alternative to litigation.

The judge in a court hears the position taken by each party and then decides.

Mediators help in the definition and analysis of the differences between the parties and look at the underlying interests and needs of the parties. Mediation differs from litigation in two fundamental aspects viz:

  •  It is voluntary.
  •  It is without prejudice (i.e. it does not bind either party, who are not held to what has been said or has occurred during the process).

Mediation can take place at any time. It can be at the outset of a complaint, or at a later stage, when litigation is underway, but is not meeting the needs of the parties and/or when negotiations to settle the case have broken down.

Benefits

The benefits of mediation are:

  • Speed

Litigation usually takes a long time to conclude. In the case of Dominic Puthucheary & Ors v Dr Goon Siew Fong & Anor, it took about 23 years to reach a decision. Similarly, in Dr Chin Yoon Hiap vs Ng Eu Khion and others it took about 21 years. The considerable time it takes for the resolution of litigated cases does not do justice to all parties.

In countries where Pre-Action Protocols are adhered to strictly, there is more rapid movement of the cases in the courts. However, time is still needed to get through the whole process which takes a few years to conclude. Where there are no Pre-Action Protocols or, if there are, no strict adherence to it, the whole process takes an even longer.

Mediation can provide a speedier resolution and permits the parties to have an earlier mutual evaluation of the case. Even if there is no settlement or resolution, mediation may be helpful, if the case goes to trial, because, the parties would have a more focused view of the issues between them.

A sine qua non for mediation, however, is the availability of all medical records and medical reports.

  • Confidentiality

Mediation allows parties to state their grievances and discuss areas of concern in private rather than in court, where it is public and which may be reported in the media.

  • Less stress

It is well documented that litigation is stressful to both parties. Mediation can help avoid this with early settlement of complaints and may be healing for both parties. The claimant has say in a setting where he or she is listened to. Many mediated cases addressed the emotional aspects of the complaint rather than monetary compensation. There is greater likelihood of a continuation and a healing of the patient-doctor relationship unlike in litigation, where it is destroyed in because of its adversarial nature.

  • Control

Mediation allows both parties to feel that they are in control of the proceedings instead of being under the control of lawyers and the courts. There is no feeling that a third party’s view is imposed on them. This leads to no one feeling that they have lost out. It may also be less confrontational. This is, however, dependent on the parties involved.

  • Flexibility

There is greater flexibility in mediation because the remedies are more varied. Settlements in litigation are monetary. However, mediation permits more customized settlements which are not just monetary e.g. explanation, apology, dissemination of lessons from the case to other doctors.

  • Cost

The cost of litigation is increasing as evidenced by the marked increase in the premiums of medical indemnity organizations in the past two decades. Legal costs, rather than the compensation awarded to the injured party, constitute an increasingly significant proportion of the court payments. Sometimes, the legal costs exceed the court award.

The lower costs of mediation i.e. more rapid conclusion, informality and the non-requirement for the exchange of all the evidence can make it possible for more aggrieved patients to address their complaints.

  • Equity and ethics

The high cost of litigation has made it very difficult for patients without means to commence proceedings. Furthermore, there are allegations of cases being taken on contingency basis, a practice that is not considered ethical by the legal fraternity.

  • Results

It is reported that settlements result in as many as 80% of mediations. For example, court directed resolution (CDR) is offered to all who file law suits in Singapore. It is not mandatory as it takes place with the consent of both parties to the lawsuit. The implementation of CDR in its Subordinate Courts has contributed significantly to the early and amicable resolution of large number of lawsuits prior to trial, including medical negligence claims. 

As of 1 April 2009, more than 1,400 matters have been referred to the Singapore Mediation Centre. Of those mediated, about 75% were settled. There are various types of cases which include contractual and employment disputes, medical negligence claims, partnership disputes and personal injury claims. Of the settled cases, more than 90% were settled within one working day. Of the disputants who participated in, and provided feedback on, the mediations conducted at the SMC, 84% reported costs savings, 88% reported time savings and 94% would recommend the process to other persons in the same conflict situation. (http://www.mediation.com.sg Accessed 13 August 2009). It was reported by the Singapore media that, of the 79 medical negligence suits filed in its Subordinate Courts from 1998 to 2006, only two went to trial.

Risks

As with all things there are risks, which include:

            1. Sub-optimal outcome
It is possible that the patient may be disadvantaged by the settlement, either in monetary or accountability terms. There may be pressure to reach a conclusion on the mediation date, as everyone is expected to arrive at an agreement. There may be a feeling of failure for everyone involved if this does not occur.

            2. No changes in medical practice
It is believed by some that litigation has led to a corresponding increase in risk management in medical practice and greater awareness of patients’ communication needs. It is unclear if unreported mediated cases behind closed doors will create the same impetus for patient safety measures to be undertaken.

            3. Lower damages
It is possible that mediation will result in lower payouts for damages in some cases because it is often the threat of the court action that provides the impetus for respondents into offering realistic damages.

            4. Lack of control
As in any informal process, there is less control of processes, as they are not controlled by the claimant, health care providers, or the usual procedures of the litigation process or the court.

            5. Cost
If a case is mediated after initial investigations, then the costs of mediation may exceed negotiation. A negotiated settlement often occurs at this stage and well before litigation.

            6. Stress
It can be stressful for some claimants to have to meet health care providers and the mediator face to face. On the other hand, lawyers can obviate direct contact with the other side and also act as a buffer in some circumstances.

Conclusion

At a time when the litigation is long and inequitable in many respects, the benefits of mediation far outweigh its risks. Mediation can provide benefits, both monetary and otherwise, for victims of medical accidents.

Few medical cases in Malaysia have actually been through the mediation process for various reasons. As such, it is not yet possible to determine its utility in the resolution of issues for victims of medical accidents.

Mediation will not work in all disputes. However, a better understanding of its benefits will certainly increase its uptake by claimants, lawyers, doctors, medical defence organizations, health care facilities and society in general. Those who believe in mediation will need to organize their collective strength and energy to promote it so that society can realize its benefits.

In summary, it would be helpful for all potential disputants to take heed of Richard Lamb’s statement “No nation in history has ever sued its way to greatness.”  

 

Dr Milton Lum is member of the board of Medical Defence Malaysia. This article is not intended to replace, dictate or define evaluation by a qualified doctor. The views expressed do not represent that of any organisation the writer is associated with.

 

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