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Clinicians to help resolve legal claims

View profile for Laura Sheehan
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If you’ve ever made a complaint about your medical care and the complaints process has been followed correctly, you’ll appreciate the benefit of the treating clinicians addressing your concerns. They can provide answers to your questions and that all-important apology if the treatment provided wasn’t up to standard or the outcome wasn’t as you had expected. This can make a huge difference to patients – giving them closure on the ordeal and often restoring faith in the abilities of the medical profession.

In claims for clinical negligence, where the substandard treatment has caused injury and a payment of compensation is being claimed, with some injuries being catastrophic or fatal, it can often be the case that clinicians aren’t involved in the process or at least not seen to be involved by the injured party. Whilst claimants may be successful with their claim and receive compensation for their injuries, often all they desire is an acknowledgement of the harm caused by those involved. This unfortunately isn’t received in some cases. 

More recently, lawyers have been making use of a process called mediation. Mediation is where both parties meet to discuss the legal issues of a clinical negligence claim and try to resolve it. A mediator, who is an independent third party, assists by liaising between the two parties and steering them towards a resolution, which if appropriate, includes a payment of compensation. 

Mediators want lawyers to involve the clinicians more in this process, to speak directly to the injured parties with a view to resolving the claims. Alan Jacobs, mediator at the Centre for Effective Dispute Resolution (CEDR), told a Manchester conference of lawyers recently that they should do more to encourage discussions between injured people and those allegedly responsible. His call came as figures show record numbers of clinical claims against the NHS went to mediation in 2018/19 – with the majority of mediations resulting in compensation amounts being agreed on the day. He said the challenge now is to ensure medical professionals volunteer to take part in the process:

‘It allows an apology to be given face to face and allows explanations to be given….It is also an opportunity for the clinician to have a discussion, sit down with the claimant and answer questions and concerns. It can be tremendously important for a claimant to vent and express their frustrations and for the [hospital] Trust to hear that.’

Whilst this won’t be beneficial in all cases, for example where claimants are very stressed and anxious about seeing the clinicians, generally claimant and defendant lawyers agree on the merits of bringing doctors into the process. The suggestion can be met with resistance by clinicians because of the perception that the process is for the legal profession or the belief that their presence will only inflame matters. It is hoped that, in time, this resistance lessens as the benefits are seen. 

We at Stephensons have certainly had a lot of success with mediations we have taken part in. Whilst it will need to be judged on a case by case basis, we are aware of the significant emotional and psychological benefit that speaking to clinicians and receiving an apology and an explanation directly from them can bring to a claimant. It’s a benefit that no award of compensation can provide. 

If you believe that you or a loved one have suffered due to medical negligence call our experts on 01616 966 229