The importance of early mediation: saving time and money in a clinical negligence claim
A Freedom of Information request recently revealed that the NHS is facing £4.3billion in legal fees for outstanding clinical negligence claims. Partner and Head of Clinical Negligence, Rachel Pearce, argues that early mediation could save unnecessary distress for clients and costs for the NHS.
A recent BBC report stated that the NHS receives more than 10,000 new compensation claims each year from patients, or their families, seeking recompense for injuries they suffered while in its care. A Freedom of Information request made by the BBC indicated the NHS is currently faced with £4.3billion in legal fees to settle such claims.
I always strive for early settlement, ideally through mediation. I believe if the NHS were able to follow their own guidance on early mediation, they may not be faced with spiralling costs. Many cases we are involved with are unnecessarily costly, in my view, as a result of the way they have been handled by the NHS. We find healthcare providers increasingly resistant to enter into early settlements or to engage with people who want answers and recognition for what they have experienced.
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Why do people decide to make a clinical negligence claim?
The aim of compensation is to help the client, or their family, get back to the position they would be in if the injury had not occurred.
Compensation may be needed to cover the cost of many areas, such as lifelong care, loss of income or adapting a home. While a financial settlement may enable someone who cannot walk again to access care, or help a widow reliant on her late husband’s earnings to continue living in the family home, life will never be the same again.
Money is just one reason people ask me and my team to pursue their case. It is common for people to simply want their experience to be acknowledged. Many are motivated by a desire to prevent others from suffering, or the need for systemic changes, so the hospital avoids making the same mistake again. We know these system failures can happen. An independent enquiry, reported recently in the news, described a culture of ‘avoidance and denial’ which enabled breast surgeon Ian Paterson to carry out unnecessary mastectomies on hundreds of women.
Whatever their motivation, most people want to achieve an early resolution so they can move on with their lives.
What benefits can early settlements bring?
Although we strive to resolve cases as quickly as possible through early settlement, we continue to support some of our clients for many years, as a result of what we see as inefficiencies and slow responses from some healthcare providers. One of our clients, who suffered catastrophic neurological damage following time in hospital, came to us for advice and help in 2014 and we have only recently entered into judgement in her favour.
Part of our service includes seeking to secure early access to treatment to aid recovery. One of the benefits of settling as early as possible is that people can begin and benefit from treatment before their condition worsens.
Settling cases quickly cuts down on legal fees. Of course, these are often complex cases, involving research and sourcing expert witness reports, which should not be rushed. However, we see avoidable delays because the healthcare provider does not engage with the process early enough.
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The issues in many of these types of cases are very complex. Inevitably, some of the costs can spiral when the healthcare provider avoids early discussions, forcing the lawyers to thoroughly investigate all potential issues in the interests of their clients, which sometimes turn out to be unnecessary or unrelated to the case. In some instances, we are able to get an early admission from the healthcare provider meaning we can focus on valuing and settling the claim. We are close to settling a case for a young mother whose delay in diagnosis and treatment led to the amputation of the fingers and thumb of her dominant hand. Although we waited more than a year for a response, the hospital trust admitted liability in full and have made an interim payment of damages to enable the client to start the treatment she needs while we work on settlement negotiations.
What does the NHS say about using mediation to resolve claims?
NHS Resolution, the arm of the NHS responsible for negligence claims, outlines the benefits of using mediation to resolve cases. This is when the claimant and hospital reach agreement with the help of a mediator, avoiding going to court. In our experience, however, the healthcare trusts seem reluctant to enter early mediation, which adds unnecessary time and costs to many cases.
There is no denying this is a complex situation and one that does not have an easy answer. NHS staff are working under unprecedented pressures and most of them do a brilliant job in very difficult circumstances. But that is not an excuse for poor care, and people who have been seriously injured or died due to inadequate care deserve compensation. Healthcare providers could reduce the burden and legal costs for themselves and the claimant by responding more promptly to these claims and, if appropriate, agree to early mediation.