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HomeA FocusEthiQal and MPS take up the debate on mediation for medical negligence...

EthiQal and MPS take up the debate on mediation for medical negligence claims

EllisHowarthGraham Howarth, the Medical Protection Society's head of medical services Africa, and JP Ellis, EthiQal's medical malpractice legal manager, respond to Advocate Alan Nelson's MedicalBrief article last week on the potential for mediation in medical negligence claims.

EthiQal's JP Ellis writes:

Much has been written about the current state of affairs in the healthcare environment, particularly regarding Health Minister Dr Aaron Motsoaledi’s comments attributing blame to lawyers. Some time ago I mentioned that comments like these are “unfortunate as they create the wrong perception that the general body of lawyers who prosecute personal injury claims are ‘unscrupulous’. On the contrary, there appears to be a number of systematic problems in our legal system that have resulted in an abuse of the litigation process, particularly in medical malpractice matters, which have in some circumstances resulted in the abuse of contingency fees; vexatious litigation; plaintiffs not being awarded damages to which they are entitled; and ineffective cost orders when defendants are successful in defending litigation".

On 28 March 2017 Constantia Insurance, of which EthiQal is a division, in conjunction with the Department of Health, submitted a detailed report to the ANC NEC Subcommittee for Health and Education proposing a variety of solutions in formulating legislative reforms relevant to the above-mentioned issues, and our efforts to make meaningful change in this area remain ongoing.

Undoubtedly the current healthcare crisis is a complex issue requiring a well-considered and responsible approach by all stakeholders in the healthcare environment and we are encouraged by the ongoing contributions and commentary made by our colleagues who offer their support and recommendations to resolve this current impasse.

Although achieving a sustainable and long-term solution requires legislative reform it is important to keep in mind that this will not be without any difficulty. We, therefore, recognise that mediation can never be the only solution to this complex problem. However, it needs to be stressed that mediation probably offers the most immediate remedy as an appropriate alternative to High Court litigation proceedings.

When parties to a dispute proceed to trial for the resolution of the matter they are putting their trust into the hands of a judge who often has no medical background (besides their own personal experience) or competency in determining complex clinical negligence issues. In addition, the cost of taking a medical malpractice case to trial is prohibitively expensive as it involves utilising expert witnesses, legal representation, securing and organising voluminous medical records and many other procedural requirements can result in out-of-pocket expenses that would be prohibitive for many plaintiffs and a significant factor for malpractice insurance carriers. In some jurisdictions in South Africa, cases can be prepared and tried relatively quickly (as demonstrated in the advanced case management protocol in the Western Cape High Court) but in others it can take years to conclude with the potential for an appeal to delay the process. Thus, medical malpractice cases have become an endurance contest and when coupled with the unpredictability of the outcome makes mediation (or other appropriate dispute resolution mechanisms) increasingly more palatable.

Notwithstanding its obvious benefits one wonders why it is not generally considered as viable.

In many cases, mediation is overlooked by the parties and their legal representatives (probably because of the negative perception that it is not a credible option). There are obviously many reasons why mediation has drawn a sceptical response from the legal community, some of them I highlight below:

1. assuring the quality of mediation services has become a visible challenge;
2. there are no uniform accreditation systems in the country;
3. no stringent barriers to entry into the practice;
4. mediation is a fragmented occupation, with practitioners varying to a tremendous degree in their training in methodology.

But, to my mind, there is little public insight into the mediation process. This largely explains why the people who have criticised the effectiveness of mediation in resolving medical malpractice cases appear to have little understanding of what the mediation process involves.

For the reasons outlined in Alan Nelson’s article dated 28 June 2017, mediation offers a sensible and rational approach to irresponsible litigation. Because of the fluidity of mediation, the parties can reach a compromise in a more responsive way. For example, our common law makes no provision for the capping of damages award by way of annuities or structured periodic payments but such arrangements can be easily made between the parties in the setting of a mediation process (of course, there have been instances where our legislator has deviated from the common law principles through providing for the capping of claims and structured periodic payments, as in the case of the Compensation for Occupational Injuries and Diseases Act, 130 of 1999 and the Road Accident Fund Act, 56 of 1996).

What is often forgotten in our adversarial system of litigation is the burden which the process leaves on the parties themselves. An instance of alleged clinical negligence effects the patient consumer as well as the healthcare professional. It is therefore important to resolve the dispute in a humanely way.

SASOG (The South African Society of Obstetricians and Gynaecologists) have openly committed themselves to assist in the mediation of disputes relating to obstetrics and gynaecology. They have assembled a team of specialists in a panel referred to as the Expert Opinion and Mediation Subcommittee to offer parties in a mediation dispute a free clinical opinion with a view to determining issues relating to liability. The proactive approach by SASOG needs to be commended and their initiative clearly highlights their pledge to exploring this method of dispute resolution as a way of resolving the issues facing their practice speciality.

The background and difficulty of this problem (i.e. the obvious failure to appreciate the benefits of mediation) is what we as South African lawyers are well acquainted with. Right assertion is inextricably linked with an adversarial approach – people want to assert their rights in an adversarial system with a court-based procedure to vindicate those rights at the expense of almost anything. Without belabouring the point, we all owe it to ourselves, as patient consumers, medical practitioners and hospital groups, to, at least, explore mediation and to keep an open mind in how we tackle this complex healthcare crisis, which affects all of us.


MPS' Graham Howarth writes:

Alan Nelson (Medical Brief 28 June 2017) makes an important point about the role of mediation in reaching swifter, less expensive and acceptable resolution for the parties involved in a clinical negligence claim, and the need for greater awareness about how mediation works so it is increasingly considered as an option.

Indeed the Medical Protection Society’s 2015 paper: ‘Challenging the Cost of Clinical Negligence: The Case for Reform’, stresses the need to find ways to encourage greater use of alternative dispute resolution if we are to reduce the frequency of claims and complaints, and their associated costs.

But MPS also recognises that tackling the problems that have contributed to the difficult claims environment in South Africa means looking at a whole package of legal reforms, not only at mediation.

While reducing legal costs is important, the magnitude of the damages being awarded is actually the main cost driver.

In MPS’ experience, the damages awarded in South Africa are increasing – it is not unusual for cases to exceed R10m. Between 2009 and 2015, there was an escalation in the likely value of claims brought against healthcare professionals, with claim sizes increasing by over 14% on average, each year, during that period.

Special damages (for loss of future earnings and the cost of care) in particular have increased considerably – especially in high value catastrophic claim cases – and we do not believe this and the deteriorating claims environment is due to a decline in professional standards.

As a not-for-profit membership organisation, we have an obligation to ensure that we collect sufficient subscription income to meet the expected future costs of claims against members so we can be in a position to defend their interests long into the future, and for that reason we have had to reflect the rising costs in our membership subscriptions. We recognise the difficulties such increases pose, and that these are very challenging times for healthcare professionals.

It is important that there is reasonable compensation for patients harmed following clinical negligence, but a balance must be struck against healthcare professionals’ and society’s ability to pay.

In our 2015 paper we recommend a general damages tariff being created in statute, a limit on general damages, and a limit on loss of earning claims and future care costs.

The compensation awarded must provide the level of care required, but there are enormous differentials between costings set out by care experts for the claimant and those for the defendant. MPS proposes that an independent review body define a care package that provides an appropriate standard of care for all patients with a particular injury, regardless of the cause, and set an ultimate limit. This will have the benefit of allowing local care experts to give advice and make recommendations on the criteria for an appropriate care package for a particular injury.

There is precedent in South Africa for a limit on damages. In particular we point to the changes to the legal landscape in respect of road accident claims with the introduction of the Road Accident Fund Amendment Act 2008. This Act was introduced in response to on-going concerns about the sustainability of the compensation scheme in the face of an increase in the size and frequency of claims.

The Fund addressed these concerns by setting financial limits on its liability in certain circumstances. Notably the Fund has capped claims for loss of income and support regardless of actual loss, adjusted quarterly to account for inflation. Payment of general damages is now limited to instances where a ‘serious’ injury has been sustained, ie 30% or more impairment of the Whole Person as per the US Guide (subject to certain exceptions).

There can be little doubt that the current litigation framework poses a number of challenges for patients and their families as well as the healthcare professionals.

In order to best serve South African citizens, we need a system that promotes the minimising of unnecessary expenditure, conserves court resources and ensures that the parties are on an equal and fair footing from the start.

MPS is keen to be part of the debate on reform, and we recognise we have an important role to play in other areas. We will continue to promote safe practice in medicine and dentistry by helping to avert problems in the first place. Crucially, we will also continue to advocate open disclosure. When organisations embrace open disclosure it benefits all involved. Above all, it is the right thing to do.

[link url=""]Advocate Nelson's MedicalBrief article[/link]
[link url=""]Neil Kirby's MedicalBrief article[/link]
[link url=""]MedicalBrief report on Dr Aaron Motsoaledi's article[/link]
[link url=""]MPS's Challenging the Cost of Clinical Negligence: The Case for Reform[/link]

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