Doctors Afraid to Explain.
It is sad to read the unfortunate news of the removal of the wrong kidney of child resulting in Proceedings before the fitness to practice committee of the Medical Council. It is nearly three years since the operation was performed; the enquiry before the Medical Council is now happening; God knows where the compensation due the victim/his parents is at.
In terms of Mediation in Medical Negligence cases two particular legislative provisions immediately come to mind: Section 62 of the Medical Practitioner Act, 2007 and Sections 15 & 16 of the Civil Liability and Courts Act, 2004.
The Civil Liability & Court Act, 2004 (S. 15 & S.16) provides for the setting up of a “Mediation Conference” in certain circumstances. If one of the parties involved in any Personal Injuries litigation requests a Mediation Conference and the Court thinks that it would assist in reaching a settlement then it can be ordered by the Court. The details of the Mediation can be agreed by the parties and/or, if necessary, directed by the Court.
If the Mediation succeeds that will bring a quick and relatively inexpensive conclusion based upon an agreement entered into by the parties themselves – with the assistance of the Mediator. In such cases the parties will – certainly should – be legally represented. In these circumstances the agreement of the Parties will be provided to the Court.
If the Mediation does not succeed there will be no prejudice to either side in that the cornerstone of Mediation is confidentiality. Absolutely nothing that takes place during the Mediation can be used in evidence in any later case. In these circumstances all the Mediator will be required to do is to inform the Court as to whether the Mediation took place or not and that it was unsuccessful – nothing more. However, if one of the parties refused to attend the Mediation then the Court will be so informed and there is a growing body of case-law to suggest that that party will be likely to be punished when costs are ultimately awarded -irrespective of the outcome of the substantive case.
The Medical Practitioners Act, 2007 (S. 62) states, in effect, that a recommendation can be made at a preliminary stage that a complaint against a doctor may be capable of resolution by Mediation or other informal means. It states that the Medical Council may prepare Guidelines for this. Unlike the Civil Liability & Courts Act provisions this section states that the complaint can not be dealt with in this way without the consent of both the complainant and the doctor. It seems that this provision has been rarely utilised, if at all.
In his Access to Justice Report, Lord Woolf says that the Medical Negligence area is one that would particularly benefit from the greater use of Mediation. It remains underutilised however because, he says, of “the climate of mutual suspicion and defensiveness that is prevalent in the area of clinical negligence litigation”. In this blame-oriented climate, fuelled by the litigation processes, it has become impossible for a doctor to even give an explanation of something to an aggrieved patient, much less an apology. The doctor will be afraid of any such explanation or apology being used against him – maybe even included in the Pleadings; further, he will be afraid that anything he says might be used by his insurer to avoid their liability on his policy. There may be a simple explanation for a minor event and the doctor may have changed his practices as a result but he feels that he cannot even tell the patient. The patient becomes even more aggrieved and suddenly the minor matter snowballs out of all proportion before both the Medical Council and the High Court, goes on for years and costs a fortune.
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
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Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
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