Mediation in medical negligence cases is most commonly used to achieve a settlement rather than tend specifically to the wider needs of the plaintiff, writes
CervicalCheck cases highlight fundamental problems with the adversarial approach taken in medical negligence litigation.
The cases taken by a number of women affected by the scandal including Vicky Phelan and Emma Ni Mhathúna have once again raised questions as to how cases of medical negligence are handled.
Ms Phelan, who was given incorrect test results and is now terminally ill with cervical cancer, has given a disturbing, but not unique, account of her experience with litigation.
Ms Ni Mhathúna’s case is still ongoing with the HSE yet to admit full liability.
Medical negligence claims are traditionally litigated in Ireland. By its very nature, the system is adversarial. However, the harm caused in cases such as the CervicalCheck scandal, is exacerbated by the aggressive approach taken during litigation.
Alternatives to litigation such as mediation have been frequently mooted by members of the judiciary, such as president of the High Court, Mr Justice Peter Kelly, as being particularly suitable to medical negligence cases.
The flexible nature of mediation is particularly advantageous to cases of medical negligence as it affords disputants an opportunity to explore creative solutions, such as system-change, while acknowledging the fraught nature of the dispute in a dignified environment.
Mediation is non-binding, and if a resolution cannot be reached, parties may revert to litigation.
Given the potential of mediation to ameliorate the burdens of litigation, it is surprising that the process is not more frequently engaged in.
The most recent figures available from the State Claims Agency (SCA) indicate that mediation in this context has enjoyed a low uptake to date.
For example, in 2014, the SCA reported that of 488 medical negligence claims resolved, a mere 13 were resolved via mediation.
Similarly, only a fraction of claims were resolved via mediation in 2013, with the SCA reporting that out of 419 claims resolved that year, only 19 were resolved through mediation.
In theory, medical negligence and mediation appear to be a good match.
However, although mediation was recently praised as providing a just solution in the case of Kyle Carpenter, a nine-year-old boy with cerebral palsy who settled his case with the HSE via mediation, my research with representatives of the legal and medical professions and patient support groups indicates fundamental problems with the process and the adversarial approach taken by parties to these disputes remains.
The findings of my research indicate that, in line with the traditional adversarial approach, mediation in medical negligence cases is most commonly employed as a device to achieve settlement, as opposed to an opportunity to tend specifically to the wider needs of the plaintiff.
Additionally, although mediation may avoid the stress and costs of a protracted trial hearing, at present, most medical negligence cases only proceed to mediation nearing trial date, thus, the potential to achieve expedient resolution and significant cost savings is limited.
For example, although the Carpenter case reached settlement via mediation last week, proceedings in the Carpenter case were lodged in 2013, meaning the Carpenter family was operating under the cloud of litigation for five years.
Although there is a high standard to meet the legal requirements of medical negligence, and such investigations to meet this standard take time, it is posited that earlier opportunities to engage in the mediation process are being missed at present.
The principle of confidentiality is central to the process of mediation. However, the Phelan case highlighted key issues with the confidentiality in the resolution of medical negligence disputes.
Cases which are litigated are heard in public and the decision of the court is public knowledge. However, cases which are settled outside of court, either through a negotiated settlement or mediation are often subject to confidentiality clauses, with the result that the public does not become aware of systemic or individual wrongdoing.
This has been highlighted by recent reports that a confidential settlement was made a number of years ago to a woman whose diagnosis of cervical cancer was also delayed.
It is disappointing that the defendants in cases of this nature do not agree to a waiver of confidentiality at the request of the plaintiff.
Although mediation was proposed in the Phelan case and promised an opportunity to resolve the dispute in a humanising manner, it reached a stumbling block and ultimately failed when an agreement as to the confidentiality of the settlement could not be reached.
Like many other medical negligence plaintiffs, Vicky Phelan wanted to tell her story, and to ensure prevention of recurrence. Such aims are important, particularly, in cases where there is an obvious public interest.
Despite the issues highlighted with mediation and the low uptake in this context to date, the process has huge promise.
Mediation has gained formal recognition within the Irish civil justice system more recently, due to the commencement of the Mediation Act 2017 in January of this year.
The Act was designed to encourage the use of mediation to resolve commercial, family, and civil disputes (including medical negligence).
The stated objective of the legislation is to: “Promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings.”
Given the potential of mediation to address the emotional and financial needs in cases of medical negligence, it is hoped that the commencement of the Act will see a rise in mediations in this area and that issues currently identified with the process will be ironed out.