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Patients, but not doctors, like mediation for settling claims

BMJ 2000; 320 doi: (Published 05 February 2000) Cite this as: BMJ 2000;320:336
  1. Clare Dyer, legal correspondent
  1. BMJ

    Mediation may provide better redress for victims of medical negligence than pursuing claims through litigation, according to a three year study carried out for the Department of Health in England.

    But the NHS and claimants' lawyers will need to be more willing to refer cases for mediation if the benefits are to be reaped.

    The pilot study in two NHS regions—Anglia and Oxford, and Northern and Yorkshire—was launched in 1995 with the aim of analysing up to 40 mediations over two years. But the low referral rate meant the study had to be extended for a third year, and only 12 cases were completed by the end.

    However, the research team, led by Linda Mulcahy, reader in law at Birkbeck College, University of London, also identified 44 “near miss” cases in which mediation had been suggested to the opposing side, 14 of which were ongoing referrals at the close of the scheme.

    The study also included an analysis of nearly 4000 claims handled by traditional methods. The researchers interviewed claimants whose claims were settled in the standard way, parties who took part in the mediations, solicitors specialising in clinical negligence, and claims managers. Doctors who had been involved in a claim were also surveyed, but the response rate was only 14%.

    Of all the groups involved in mediation, doctors were the least satisfied with the process. Doctors are more exposed through mediation than through traditional litigation. In six out of the 12 cases doctors attended the mediation session, whereas in the litigation process they seldom have an active role as only 1% of cases reach court.

    Claimants and their solicitors expressed most satisfaction with mediation. For claimants it was important that they were able to get remedies not usually available through the standard settlement process (which focuses almost exclusively on compensation): an explanation, an apology, and an assurance that systems had been changed to prevent a recurrence.

    In a survey of 117 claimants whose cases were settled in the usual way, money had been relatively low on their list of priorities at the start of the case, and 70% were dissatisfied with the outcome.

    Of the 12 mediation cases, 11 were successfully mediated in a one day session, reaching settlements ranging from £5000 ($8000) to £80 000. The other case was abandoned.

    Because of the small takeup, data on the costs of mediation were inconclusive. But defence representatives felt that the procedure could help to settle cases at an earlier stage, before huge costs are incurred, freeing more NHS resources for patients.

    Mediating Medical Negligence Claims: an Option for the Future? is available from the Stationery Office, price £17.50.

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