Resolving healthcare disputes with sensitivity and efficiency

Authored by Browne Jacobson Partner, Defendant Clinical Negligence Lawyer Ian Long and published by DAS

Disputes – lawyers’ behaviour

An adverse outcome following medical treatment has an impact on everyone involved, from the patient, their friends and family to the healthcare professionals. With the odd exception, healthcare professionals are dedicated to helping to improve the life of their patients and are devastated when things go wrong.

When there is an adverse outcome and lawyers become involved, we should put the patient and the healthcare professionals at the centre of the process, working collaboratively to facilitate a resolution.

Litigation encourages language that now seems outdated, with lawyers talking about “winning” or “losing” cases. For the “winner” there was a positive outcome, but perhaps with a high emotional toll attached. For the “loser” the experience is likely to be bruising and might have long-lasting implications.

I therefore think lawyers in this field should approach dispute resolution with sensitivity and empathy for everyone involved. Hearing lawyers saying “I have a case involving …” is a good sign that they are not putting the parties at the centre of the process!

Options for resolution

Achieving resolution requires experience, a good understanding of the issues in dispute and confidence.

Processing claims simply results in painting by numbers, with lawyers following the directions timetable to trial and allowing the judge to assess the evidence and impose a resolution on the parties. In many clinical negligence cases, that seems a wasted opportunity.

Inevitably there will be cases that will not have been successful, despite the parties engaging fully in efforts at achieving resolution outside the court process. These cases will need to be determined independently, but this should respresent the minority of cases.

Regardless of which side you are representing, it is rare for a claim to be without any litigation risk. The lawyer’s role should be to investigate and assess that litigation risk and then to agree a strategy with their client to achieve resolution within the risk parameters identified. If that cannot be achieved, then the strategy should be reviewed.

I’d like to encourage early discussions between the parties and that comes back to my point above about confidence. Early, informal, without prejudice conversations might unlock the answer to resolution at an early stage. If not, it might at least narrow the issues in dispute. Lawyers should not think that they need every last scrap of possible evidence to be able to start a conversation with the other side – use your experience of similar cases (particularly in relation to issues of quantum) and be confident!

Paragraph 6 of the Pre-Action Protocol for the Resolution of Clinical Disputes requires parties to perform a stocktake before issuing proceedings, but they are only directed to “review their positions”. I think a meaningful stocktake requires a dialogue between the parties. If that does not result in resolution, the door should be left open for further discussions as and when any outstanding issues have been clarified.

We have found mediation to offer an excellent forum for the resolution of disputes. It is a process that puts the parties (rather than the lawyers) at the centre of things. It is also flexible and can accommodate the particular sensitivities of the case.

In my experience, it is often the issues that would not be addressed in legal proceedings that prove to be the key to resolution. I have seen many instances where a simple but frank and considerate conversation between the parties (not the lawyers) enables much of the emotional burden of the case to be acknowledged and dealt with, leaving the path open for resolution to be agreed in a constructive and collaborative manner.

It is enormously powerful for the family to be able to describe the impact of the incident to the healthcare professionals and for them to hear that direct. In the same way, the healthcare professionals’ explanation as to what happened and any changes made to practice as a consequence can be very valuable for the family alongside the feeling that they have been heard and their concerns acknowledged.

Mediation is a process that is sensitive and efficient. Litigation is just a process and should be seen as the last resort