THE POTENTIAL OF MEDIATION IN THE MEDICAL NEGLIGENCE FIELD AS SCOPE OF PRACTICE
Introduction: The purpose of mediation is to discuss the disputes between the parties involved, in an attempt to resolve the dispute in a less hostile and confrontational approach, without having to rely on an often less efficient, more expensive and time-consuming judicial system. The needs, interests, and concerns of both parties are discussed in a less threatening and informal environment, with a non-partial, non-judgmental and objective person, who does not act as a decision-maker, but steers the process and attempts to optimize understanding of the issues. The focus is not on winning, or retribution for past behaviours or transgressions, but to find a workable solution for both parties. The course and outcome of disputes are controlled by the participants, which can be an effective solution to health care disputes. The mediation process is without prejudice and potentially secures an environment of confidentiality.
Potential Challenge: There is a dramatic increase in the number of medical malpractice claims in SA. The Medical Protection Society confirmed an increase of medical malpractice claims against their members of nearly 550% in comparison with ten years ago and an approximate 900% increase in the number of claims exceeding R 5 million during the past five years, several of which exceeded R 30 million (statistics 2016).
Litigation primarily focuses on the scoreboard of rights and wrongs, with no guarantee that the root of the problem will be discovered. While lengthy litigation continues, a career is destroyed, there are financial losses and an intense emotional burden strikes both parties, resulting in affirming already hostile relationships. Mediation has the potential to reunite the parties, to not cause a rift, and potentiates a platform to get clarity on unanswered questions before an adversarial trial. It also puts the clinician in a position to communicate his thoughts and feelings to the family and possibly to preserve the initial relationship between the parties in an atmosphere of trust.
Why mediation is tailor-made for implementation in health care disputes
A lack of communication is most often the reason for the breakdown of the doctor-patient relationship and mediation can be implemented to overcome the cognitive barriers.
The patient is often confused by the technical terminology used by doctors, on which the patient has to base important decisions about their health and treatment. The patient usually feels overpowered by the more knowledgeable professional.
The doctor, who had nointention to harm, needs to explain the reasons for what went wrong. Mediation offers the opportunity to improve patient safety in a way litigation cannot and to “repair the relationship between human beings”.
Balancing the situation is important, as inequality plays an important role in medical mediation cases. A mediator will focus on both parties to understand their positions and to prevent miscommunication by ensuring understandable verbal communication.
The litigation scoreboard may result in parities withholding information, which makes it impossible to resolve disputes, as the nature and extent of the issues at hand cannot be established. Mediation focusses on unfolding information in an atmosphere of trust. Should mediation fail, the parties can still proceed with litigation without confidential information being exposed.
Amongst the advantages:
- Patients are better informed of their rights and legal options. (Mediation tends to focus on solutions, not rights.)
- Public health care is deteriorating, overburdened, and under-resourced, giving rise to mistakes on a medical level.
- Increase of large medical malpractice payouts done by the State. Mediation potentially relieves the state from paying out a huge number of claims, as reality checks may curb aggression, so that solutions are reached quickly, in a less costly manner.
- A faultless liability regime: Mediation has the potential to remediate instead of focussing on faultless, which is an unrealistic concept.
- There is an increase in advertising legal services for medical malpractice. Mediation has the potential to avoid secondary gain.
- Mediation potentially relieves the overload in claims courts.
- As a result of more medical negligence claims, there is a ripple effect that manifests in higher and less affordable medical protection insurance, resulting in fewer practitioners being sufficiently insured.
- Mediation is relatively inexpensive, takes less time, and allows the parties to attain objectivity and to shift their focus. Mediation allows for flexible solutions and settlements, which are more agreeable to both parties, as it’s based on agreement and understanding and is voluntary, flexible, and fairer.
Amongst the disadvantages:
- Mediation does not always result in a settlement agreement.
- Should the parties need to proceed with litigation, there is a risk that their “ammunition” might have already been exposed to the opposing party, thereby becoming far less useful in litigation.
- Given the informal nature of mediation, the party seeking disclosure must rely on the other party’s good faith, which may or may not result in hesitancy and thereby possibly prolong the finding of a solution.
CONCLUSION: Mediation is focussed on the future of both parties and can reach beyond the issues raised in litigation. It can achieve more creative solutions to accommodate the interests, needs, and concerns of both parties. This does not necessarily happen easily. However, once objectivity is reached in the dispute, the parties may see a more desirable path forward, as the purpose of mediation is to help the parties examine alternatives and re-frame issues and perceptions to reach a satisfactory conclusion for both parties.