Mediation Case Studies
Clinical Negligence Dispute
The Problem – Clinical negligence disputes are extremely emotional. The claimant sued the NHS trust for his brother passing away under their care. It was alleged that the medical records had been altered, incomplete and or amended which gave rise to suspicion. Although a claim for a monetary amount was on the claim form, the claimant simply wanted an explanation which he felt had been less than forthcoming / inadequate.
The NHS trust wanted to put an end to this as they felt that they had addressed all the issues raised by the claimant and their legal fees were starting to get disproportionate to the actual claim.
The Solution – The family represented themselves and quite clearly were able to; the NHS trust had a whole legal team with them including representatives from the trust. The opening joint session lasted longer than usual, which slowly migrated into a frank and open conversation between the parties of where they were at and what was required by way of closure to resolve this.
A key contention raised by the family was their brother was not cared for as he should have been, equally there were discrepancies between the time of death and the times that the necessary checks were claimed to have been undertaken on the ward notes.
Emotion was high at the mediation, the trust explained that it is not uncommon for the notes to be updated in retrospect and during busy, difficult times it is common for checks to be undertaken, but not always recorded correctly.
The frank exchange appeared to convince the family that although the records / notes were not absolutely accurate the hospital had done all that they should have.
Several separate meetings followed to discuss who would pay the NHS trusts legal fees, and how to word the actual formal apology and explanation to be issued to the family. It was decided that the trust would bear all their own legal fees, but did not accept liability, but apologised in a manner which the family could live with, resulting in them dropping their claim.
- The mediation took 1 day compared to the 20 months this clinical negligence dispute had already gone on.
- The mediation cost each party £650.00 each compared to the thousands they had already spent on legal fees and the thousands they would have had to spend had they continued with Court action.