Pilot study could cut medical negligence costs

BMJ 1995; 311 doi: (Published 23 September 1995) Cite this as: BMJ 1995;311:770
  1. CLARE DYER, legal correspondent
  1. BMJ

    An experiment in resolving medical negligence cases by mediation rather than costly and lengthy court proceedings got under way this week in Britain. The pilot scheme, backed by the Department of Health, is to go ahead in two regions--Anglia and Oxford, and Northern and Yorkshire.

    Its first case was due to be tackled this Thursday, after the BMJ went to press. Hinchingbrooke NHS Health Care Trust in Huntingdon, Cambridgeshire, and a patient who had two stillbirths at Hinchingbrooke Hospital have agreed to try to settle the case through mediation.

    Now mainly used in divorce cases and in resolving disputes between neighbours, mediation involves a neutral third party acting as go between to help the two sides reach agreement. In the Hinchingbrooke case the mediators are two independent solicitors from a firm in Suffolk.

    The scheme could be extended nationwide if research, funded by the Department of Health, shows it to be successful in resolving disputes speedily and cheaply. The pilot, coordinated by the Oxford Centre for Medical Risk Studies, is being financed by the 14 NHS trusts that have signed up, with some reimbursement from regional funds.

    Mediation could prove particularly attractive to people denied legal aid to pursue cases through the courts. Medical negligence cases have a lower success rate than other personal injury claims, and legal costs can exceed the compensation at stake.

    Adrian Desmond, secretary of the Association of Personal Injury Lawyers' medical negligence special interest group, said: “The whole thing creates tremendous potential for settling medical negligence claims before they get priced out of all sense of reality.” Patients will be able to bargain for outcomes not available in the courts, such as changes in hospital practices or retraining for a doctor, as well as compensation. Plaintiffs' lawyers say that their clients' main motive for litigation is often “to make sure it doesn't happen to anyone else.”

    Lord Woolf, head of the official committee set up to find ways of improving access to justice, strongly backed the wider use of mediation in his interim report last June. A Law Society working party on the Woolf reforms is studying the feasibility of diverting all medical negligence cases up to £10000 to mediation.

    Keith Miles of Action for the Victims of Medical Accidents, said, “Lawyers were not enormously keen to get involved with this at first, but now there is slightly more goodwill on their part towards looking at other ways of approaching medical negligence cases, including mediation.”

    The BMA's head of legal services, Chris Hughes, said, “Litigation is a very blunt tool for resolving disputes between patients and doctors. Lord Woolf is anxious that more creative means should be found which give patients the redress they seek rather than incur massive legal bills for remedies which may not be what the patient wants.”

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