Mediators want more clinicians to come forward - and lawyers to enable them - to speak directly to patients bringing medical negligence claims against the NHS.
Alan Jacobs, mediator at the Centre for Effective Dispute Resolution, told a conference of lawyers 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 damages being agreed on the day.
Jacobs, speaking at the Claims Media conference in Manchester, 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,’ he said. ‘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 trust to hear that.’
Both claimant and defendant lawyers agreed on the merits of bringing doctors in to the room, but stressed this was not always a realistic aim.
Barrister Daniel Frieze, head of the personal injury team at St Johns Buildings, said: ‘Often it is too late and there is too much water under the bridge. Claimants are very stressed and it may be counter-productive for them to face the other side. I know the idea is of being collaborative but I’m not sure that’s necessarily always true.’
Majid Hassan, a partner with insurance firm Capsticks, said defendant lawyers try to encourage clinicians to attend mediation but often meet resistance. This is because of the perception that mediation is solely for lawyers, sceptisim about the mediation process, or the belief that their presence will only inflame matters.
Hassan added: ‘As a defendant solicitor it is for me to explain why it would be beneficial to have [clinicians] there at mediation.’
NHS Resolution last week confirmed that 264 cases in 2018/19 were settled at mediation with damages agreed, out of the 390 cases that went through the process. A further 21 cases had damages agreed within 28 days.
In total, 72 cases that went to mediation were not settled. The overall numbers going to mediation are still a fraction of the cases opened last year. Most cases (213) going to mediation were valued between £50,000 and £250,000, although 84 cases worth more than £1m went through the process.
Since the inception of NHS Resolution claims mediation service three years ago, 606 completed mediations have taken place, with a 110% annual increase in uptake in 2018/19.
Claimant lawyers told the conference that defendants have been known to agree to mediation believing they were unlikely to settle but fulfilling their obligation – as set out by the courts – to engage with the process. This has caused distress to clients who had been led to believe the claim could be settled on the day.