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Mediation in Medical Negligence, Rethinking the Civil Justice System
Mediation in Medical Negligence, Rethinking the Civil Justice System
The challenge of acquiring expert testimony and the exorbitant expense of litigation has led to criticism of the tort system. A reassessment of the civil justice system is necessary due to the increasing complexity of medical malpractice claims. In his "Access to Justice" report, Lord Woolf suggested using alternative dispute resolution (ADR) techniques, especially mediation, in medical negligence cases. Mediation is seen to be more efficient in terms of both time and expense than litigation, including benefits such as being quick, easy, private, and economical. The number of medical negligence claims is rising despite advances in medical research, which makes litigation more aggressive and expensive. Despite the drawbacks that plaintiffs in medical negligence cases must contend with, mediation provides favourable outcomes and peaceful conflict resolutions.[1]
Failure to treat people with due care and causing injury is referred to as negligence. Medical negligence is the term used to describe an act or omission on the part of a medical professional while carrying out their duties, such as writing an incorrect prescription. Four factors must be proven by the plaintiff in a medical negligence case: the doctor's responsibility to the patient, the duty breached, the harm caused by the breach, and the damage caused by the injury. For many victims of medical injuries, the tort lawsuit process has been unnecessarily complicated, lengthy, and wasteful.[2] The protracted adversarial procedure also impedes rehabilitation, which makes it more difficult for plaintiffs in medical negligence cases to prevail. Proposals have been made for alternatives to the tort system, such as the No-Fault program in Finland, New Zealand, Denmark, and Sweden, and alternative dispute resolution (ADR) methods in several countries.
The case for a just and effective healthcare delivery system that reduces the need for legal action while increasing patient happiness. To address the concerns of both physicians and patients, Lord Woolf MR suggested other dispute resolution procedures for minor claims. A good system should be fair, help preserve, improve, and suitably allocate financial and human resources, pay out quickly, be dependable, predictable, and disperse losses. Compared to litigation, mediation is a less formal and complicated procedure that results in lower satisfaction ratings and lesser compensation for victims. Arbitration is a tougher procedure requiring attorneys, more expensive, and more rigid and combative. Nonetheless, it can prevent future disputes from going to court and offers time and financial savings over litigation. In situations involving medical negligence, the ruling is final and parties should file an appeal with higher courts. No settlement may be reached by consent, but mediation offers patients an early chance to be assessed and positively handled.[3] For issues involving commerce and labour, arbitration is more appropriate; nevertheless, mediation could be preferable in cases involving medical malpractice. Hospital administrators, attorneys, insurers, and defendant physicians participate in facilitative mediation, which can be useful in settling medical negligence disputes. After the disagreement is resolved, this atmosphere promotes open communication, which changes the parties' relationship and offers closure. [4]
References
[1] Bogdanoski, Tony. "Medical negligence dispute resolution: A role for facilitative mediation and principled negotiation?." Australasian Dispute Resolution Journal 20.2 (2009): 77-87.
[2] Nkabinde, Fortunate Thobeka. Mediation: an alternative dispute resolution in medical negligence cases. Diss. 2018.
[3] Muller, Errol Cedric. Mediation as an alternative to litigation with special reference to medical negligence claims. Diss. University of the Free State, 2021.
[4] Galton, Erin. "Mediation of Medical Negligence Claims." Cap. UL Rev. 28 (1999): 321.
- The UK's tort system faces backlash due to high costs and complexity in medical malpractice claims, prompting a need for reevaluation.
- Lord Woolf recommends mediation for medical negligence cases, citing its efficiency, speed, privacy, and cost-effectiveness compared to traditional litigation.
- Despite challenges, mediation proves beneficial in medical negligence, offering favorable outcomes and resolution without the drawbacks of a protracted and adversarial legal process.
