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MEDICAL NEGLIGENCE

SEQUENCE OF LEGAL PROCESS

Initial consultation with attorney

It is vital that they attorney receive a detailed description of the alleged negligent incident, treatment leading up to this event and very importantly, the result or sequelae of the alleged negligent event.

The Patient will then sign an agreement with this attorney (mandate) appointing them as their attorneys of record, allowing the attorneys to do what they need to do in order to prove whether there is negligence in this case and obtain reasonable compensation for the damages that ensued therefrom.

Prescription

This is very important to assess straight away as there is nothing the attorney can do if the matter has prescribed. Prescription is the time period that one has to claim for damages, which is 3 years from the date of the alleged negligent act or knowledge of the Defendant.

Prescription does not run against a minor or mentally incapacitated person.  Prescription is interrupted by the service of Summons (detailed below).

If the matter has not been prescribed, continue to investigate.

Investigate

There are instances where the conduct of a practitioner or hospital staff member fall below the reasonable standard of care expected or you believe that the Defendant actred unethically; there may not be substantial damages in monetary terms to institute a legal claim but you believe that there should be recourse.

This is when a claim/complaint is instituted with The Health Professions Council of South Africa (HPCSA): http://www.hpcsa.co.za/Complaints

Conduct and Ethics

The following includes unprofessional conduct against which we may take disciplinary steps:

  • Unauthorised advertising
  • Over-servicing of patients
  • Criminal convictions
  • Improper relationships with patients
  • Improper conduct of practitioners
  • Operational procedure without patient's permission or consent
  • Disclosure of information in regard to patient without his / her permission
  • Incompetence in regard to treatment of patients
  • Excessive fees charged/overcharging
  • Insufficient care towards patients
  • Racial discrimination
  • Rude behaviour towards patients
  • Prescriptions to already addicted patients
  • Perverse incentives and kickbacks

The list is not exhaustive, and such a practitioner may be charged in terms of the ethical rules and the act.

All people have the right to good health and quality healthcare. This includes

  • Living in a healthy and safe environment.
  • Having access to quality healthcare that you can afford.
  • Choosing the healthcare services you prefer to use.
  • Receiving appropriate treatment from a qualified healthcare professional.
  • Knowing that your personal information is treated confidentially and kept private.
  • Being fully informed about any illness, diagnostic procedures, proposed treatments and the related costs.
  • Choosing to accept or refuse treatment.
  • Obtaining a second opinion, where appropriate.
  • Receiving ongoing care from your chosen healthcare provider.

You also have the right to complain about healthcare services that either violate your rights to good health or breach ethical standards, to have your complaint investigated and to receive a full response thereafter.

Is your complaint related to a hospital?

Any person may lodge a complaint with the Office of Health Standards Compliance (OHSC) for breach of any norms or standards by both public and private health establishments.

OHSC Call Centre: 080 911 6472 Email: complaints@ohsc.org.za Fax: 086 560 4157

Is your complaint related to a nurse?

If you feel that a nurse acted negligently or unethically, individual nurses can be reported to the South African Nursing Council (SANC) to investigate the complaint.

Is your complaint related to an alternative healthcare practitioner (natural healers, homeopath, etc)?

If you feel that an alternative healthcare practitioner acted negligently or unethically, report to the Allied Health Professions Council of South Africa (AHPCSA) to investigate the complaint.

If the matter relates to Negligence, move to PAIA Application

If the matter relates to Ethical Injury, refer to HPCSA or no Claim

Summons

WHO ARE THE PARTIES TO PROCEEDINGS IN MEDICAL NEGLIGENCE LITIGATION?

The Plaintiff is the person bringing the claim to court, in medical negligence matters this would be the patient or representatives of the person who suffered damages as a result of the negligence of the Defendant who is the person who is defending him/herself, ie treating  doctor or hospital.

The summons is the document which includes the Particulars of Claim.  The Particulars of claim sets out the case: Negligence, Causation and Damages.

The Summons is served/delivered to Defendant by Sheriff who will make sure that the Summons is served on the right person.  The Sheriff will then provide Plaintiff’s attorney with a document called a return of service as proof that Summons has been served on Defendant.

Defendant will then appoint his/her own attorneys who will serve a  Notice of Intention to Defend on Plaintiff’s attorney if Defendant wants to defend the action and file a Plea, which is a response to the allegations made in the Summons.

The parties attorneys will then serve various Notices on each other wherein further information/ documentation is requested so that each party proceeds with the action on the same documents and therefor on the same foot (audi alterem partem Rule).  The attorneys will prepare to trial – argument before a Judge in Court who will then decide whether Defendant is liable to Plaintiff as claimed in the Summons or whether Plaintiff did not prove on a balance of probabilities that Defendant was liable ie. rule in Defendant’s favour.

Many matters are however settled out of Court – the parties negotiate and discuss a reasonable settlement.

Expert Report

Once the Plaintiff’s attorney has received all the hospital and medical records, these records are perused by the attorney who will then decide which experts would need to be consulted.  Usually an expert in the same field as the alleged negligent practitioner will be sought to give an opinion as to whether the treatment fell below that of a reasonable practitioner in the circumstances.

In addition, it is very important that if the expert is of the opinion that the actions fell below what is reasonably expected, that those actions/inactions caused damages.

This is referred to as causation.  If there is negligence but no damages ensued, there is no use proceeding with the case.  The opinion of the Expert is then used as the basis of the claim for negligence.

Other than the liability Expert mentioned above, there are other experts that the attorney would need to brief in order to assess the quantum of the claim.

Quantum experts

Assess what the plaintiff would need to treat the damages suffered as a result of negligence to put them in a position as close as possible to how they would be had the negligence not occurred.

These experts will assess Plaintiff and write a report detailing the treatment/devices needed and the costs thereof (eg: Occupational Therapists, Physiotherapists, Speech Therapists, Psychologists etc.)  An Industrial Psychologist along with the Occupational Therapist can also assess the differences in earnings/earning potential.

The Heads of Damages claimable in a Medical Negligence Matter are:

  • Past Hospital and Medical Expenses: these are actual invoices/accounts by service providers for costs incurred as a result of the negligence and would not have been incurred had the negligence not occurred.
  • Future Hospital and Medical Expenses: These amounts are provided by the experts in their expert reports mentioned above. These are expenses still to be incurred.  An actuary will also be consulted to apply the relevant medical inflation applicable to the various services, devices etc.
  • Past Loss of Earnings/ Earning Capacity: Actual Loss of income to date as a result of the negligence. This is actual loss already experienced and will be proven by way of salary slips, bank statements etc. comparing the plaintiff’s earnings for a period before the negligence and the difference after the negligence.
  • Future Loss of Earnings/Earning capacity: As mentioned above this is contained in the reports of the Industrial Psychologist and Occupational Therapist who will advise us of the difference in career /earnings progression.  The assistance of an actuary will be sought who will apply the necessary inflationary increases.
  • General Damages for Pain and Suffering, Loss of Amenities of Life, Disfigurement and Disability: This is the only head of Damage where there is no physical support for the claim.  The amount is calculated using past case law which is similar to the claim at hand.  The current day value of this is then used for the amount claimedSouth African Counts have historically been very conservative in their awards for General Damages and accordingly, this would in most cases not be the largest portion of the claim.
  • Loss of Support: If the breadwinner dies as a result of negligence then his/her dependants can claim for the amounts they would have received from the deceased.

PAIA Application

It is vital that all the medical and hospital records be obtained from all treating practitioners involved in the treatment of the incident as well as the fallout as a result of the incident.

The records from the patient’s General Practitioner for 3-5 years prior to the alleged negligent incident will be required as the patient will need to prove that the current condition was not present before the alleged incident.

The records mentioned above are requested as follows:  The plaintiff’s attorney will write a letter to each practitioner/hospital individually, setting out the date of the alleged negligent treatment as well as the nature of the said incident; a description of the records needed for the investigation is requested as well as the accounts/ fees paid for the said treatment.

The plaintiff’s attorney will attach the plaintiff’s signed consent for obtaining the records as well as a completed “form c” in terms of the promotion of access to information act (PAIA) if the records are requested from a private or public institution:

http://www.justice.gov.za/forms/paia/J752_paia_Form%20C.pdf  private body

http://www.justice.gov.za/forms/paia/J750_paia_Form%20A.pdf   public body

When the practitioner receives the said request he/she will forward same to their insurer/legal department who will ask for the requested documents which they will consider and then forward to the plaintiff’s attorney.

Mediation

The current complicated and entrenched nature of the medical litigation system in South Africa has caused a much publicised “medical malpractice crisis”. This has required a multifaceted look at various solutions incorporating both the public and private health sectors.

Medical practitioners as well as personal injury lawyers need to consider alternative forms of dispute resolution, in line with constitutional values as well as fair practice within the framework of the law.

Mediation, as an alternative form of dispute resolution, may be a tool capable of addressing the non-financial needs of parties involved in a medical negligence/malpractice disputes.  Much of this potential is as a result of the opportunity afforded to both the patient and the alleged medical practitioner to tell their stories/explain their actions respectively, without the constraints and interruptions of litigation rules and procedures.   

Mediation moves the parties away from a blame and punishment narrative to a more conciliatory relationship where each party can feel heard by the other. This results in the letting go of anger and clearing up of misunderstanding and miscommunication.

Nature of mediation

Mediation is a confidential and without prejudice process in which the mediator assists the participants to reach an agreement through joint-problem solving.  It is voluntary and any participant may at any stage terminate the mediation.  To encourage discussion, the mediator will not disclose to the other participant any information that has been conveyed to him in private by a participant, unless the participant had given him express permission to disclose such information.

Mediation is non-binding until everything is agreed, reduced to writing and signed by both participants.  The participants retain all their rights and legal remedies, if the mediation is not successful.  The mediator may assist the participants to generate settlement options, but he/she will not impose his/her views or solutions on them. The mediator has an ethical obligation to work equally hard on behalf of all participants during the mediation.

That participants who appear on behalf of principals, shall have settlement authority, or have a person with settlement authority on standby, telephonically during the mediation.  The mediator’s fee shall be for time spent with the participants and for time required studying documents, researching issues, corresponding, drafting and finalising agreements. Most mediation agreements require that the Mediators fees be shared between all parties in the mediation.

APPLICABILITY

Time and time again, patients proceed to seek legal advice with the aim of claiming damages as a result of a mere breakdown in communication between the parties.  Historically, this has been backed by the medical professionals’ indemnity insurers’ fear of the medical practitioner incriminating themselves or providing an “admission of guilt”.   This merely fuels the practitioner’s frustration in not being able to defend or give reasons for the treatment rendered.

Medical negligence/malpractice complaints affect medical practitioners emotionally and escalates already burdened schedules and stress levels. These allegations have the potential to harm not only their reputation and career, but also their confidence in their trade and the delivery of treatment to future patients.

It has been realised that hearing a healthcare practitioner apologise with genuine remorse could be pivotal in resulting in an acceptance of a settlement or in the resolution of a dispute in total.

Medical negligence cases are usually complicated, involving contested facts and legal principles.  This results in a monumental power gradient between the patient and medical practitioner. It is accordingly vital that the medical mediators are trained to bridge this communication gap by having the ability to deal with the complex subject matter of the dispute, as well as be familiar with medical terminology and culture.  

The medical mediator should be sensitive to the fact that the injured patient or her family may be incredibly emotional or be experience intense grief.  This should be respected, yet contained in ways which are specifically taught. The mediator must also continuously urge both parties to participate in making sure complex wording and ideologies are simplified to maintain a balance of power and promote open communication.

In general the negative aspect of the litigation process includes:

  • The inability of the litigation to deter medical negligence.
  • The detrimental effect on the doctor/patient relationship.
  • The high emotional and financial costs to litigants.
  • The procedurally inefficient cumbersome and time consuming process of litigation.

Moreover, the litigation system has been found lacking in that it does not adequately address compensation for patients that suffer injuries due to negligence and fails to encourage improvement in the quality of service. (Sybblis S ‘mediation in the health care system: creative problem solving’ 2006 (6:3) Pepperdine Dispute Resolution Law Journal 502 – 503)

Medical negligence litigation is also regarded as,  “an extremely expensive, inequitable and unsatisfactory process for every party involved.”  Both plaintiffs and defendants in the action must spend an inordinate amount of money to prepare for possibly go through a trial.  The litigation process is a very long one, participants tend to leave the process emotionally exhausted, and the consequences of litigation are high for both sides, especially when parties walk away having spent a lot of money but are not necessarily made better of from their respective perspectives. (Natasha C & Meruelo JD ‘mediation and medical malpractice’ 2008 (29:3) Journal of Legal Medicine 285ff).

Mediation processes are regarded as well-suited to resolve medical negligence disputes for the following reasons:

  1.    Mediation is a confidential process that is capable of avoiding unwanted and unnecessary adverse publicity for the medical professional or institution.
  2.    Mediation is more expedient and cost effective than the usual form of litigation which takes on an average of 4-5 years.
  3.    The parties to the mediation retain a greater degree of control over the process and outcomes than in litigation.
  4.    The process of mediation is much more likely to leave the doctor/patient relationship intact as it is far less acrimonious than litigation.
  5.    If a negotiated solution cannot be achieved in the mediation the parties can revert to litigation so as to protect the patient’s rights.
  6.    In addition to compensation the process may provide the patients with an opportunity for therapeutic resolution of their claims by addressing the following:
(a)       an opportunity to explain or receive an explanation
(b)       an expression of regret
(c)        an apology
(d)       an expression of sympathy
(e)       an expression of empathy
(f)        the ability to gain closure
(g)       the conveyance of forgiveness
(h)       restoration of a valued relationship  (Emanuel L and Mills M ‘Medical negligence, litigation and mediation’ 2002 (5:4) ADR Bulletin Art2 1 ff; Bogdanoski T ‘Medical negligence dispute resolution: A role for facilitative mediation and principled negotiation’ 2009 (20:2) Australasian Dispute Resolution Journal 77)

When is the best time to mediate?
This is dependent on the complexity of the dispute.  There will often be a need to make sure that all relevant medical and hospital documents are collected and provided to an expert to assess.  An independent joint expert would be preferable in mediation cases to assess liability.
It is our opinion that the sooner the mediation process is started, the better. The process can be ongoing, but the sooner the parties are in agreement about confidentiality and documents are exchanged on a “without prejudice” basis, the more time and money can be saved.

OR

Trial

trial is a coming together of parties to a dispute, to present information or evidence to a Judge who will adjudicate the matter.  Both Plaintiff’s team, comprising of the patient/Plaintiff; his/her attorney; and Counsel (Advocate) and Defendant’s Team - will have an opportunity to present their cases to the Judge.  After hearing both sides, the Judge will then write a judgement in which he will rule in favour of one of the parties, giving his reasons therefor.
Patient/Plaintiff’s version given to attorney

It is vital that they attorney receive a detailed description of the alleged negligent incident, treatment leading up to this event and very importantly, the result or sequelae of the alleged negligent event.

The Patient will then sign an agreement with this attorney (mandate) appointing them as their attorneys of record, allowing the attorneys to do what they need to do in order to prove whether there is negligence in this case and obtain reasonable compensation for the damages that ensued therefrom.

Prescription
Assess whether this is a case of medical negligence or an ethical complaint
Investigating a claim
Obtaining Medical Records
Obtaining an Expert Opinion
Summons

What is Medical Negligence?

  • Sir William Blackstone was the first to use the phrase medical negligence in 1768   - “how trust is broken between the patient and the practitioner”.
  • According to Carstens and Pearman, Medical negligence in South Africa started with an 1877 case where Judge de Villiers brought medical negligence to the fore when he stated that:

‘There can be no doubt that a medical practitioner, like any professional man,  is called upon to bring to bear a reasonable amount of skill and care in any  case to which he has to attend: and that where it is shown that he has not exercised  such skill and care, he will be liable in damages.’ 

Three components to proving Medical Negligence:

The medical practitioner owed the claimant/ patient a duty of care;

The medical practitioner breached the duty of care;

As a result of the breach of duty of care, the claimant/ patient suffered damages/ loss.

What is the standard of care required?

“that of a Reasonably Competent Practitioner, in the same branch of the profession, under the same circumstances…..” (expert)

  • The test is whether a REASONABLE PRACTITIONER in the same profession would have foreseen the likelihood of harm and taken steps to prevent it.
  • No legal liability for unforeseeable complications.
  • The same standard of care is not expected from a doctor called out at night in a rural setting as from a doctor working in a fully equipped and staffed hospital.

Why patients litigate: 3 A’s

Accountibility

Answers

Assurance

THE MOST COMMON INCIDENCES OF NEGLIGENCE THROUGHOUT ALL SPHERES OF MEDICINE:

Usually negligence is as a result of one of the following or a combination of a few of the following:

  1. Misdiagnosis:
    • Failure to examine properly,
    • take a proper history,
    • use available diagnostic tools
  2. Errors in Judgment:

“ I tugged too hard on the tumour which resulted in a tear in the vena cava during a medias-tinos-copy”

  1. Volksmann Cases:

Negligently Omitting to Diagnose Foreseeable Complications (volksmann ischaemic contractures)

  1. Failure to communicate a diagnosis
  2. Failure to complete the treatment
  3. Failure to refer to another hospital / specialist – “if he had been brought to me in time I could have successfully done a mechanical embolectomy, he would be walking today, the stroke unit is a mere 20 km away, you should have known…”
  4. Failure to follow up and render post-operative care

IMPACT OF THE CONSUMER PROTECTION ACT ON HEALTH CARE:

Application of the Act

  • The Act came into operation on 1 April 2011.
  • ‘Consumer’ A person who purchases goods or services / enters into a             transaction with a supplier, and therefore includes a patient.
  • ‘Goods’ Anything marketed for human consumption, including             medicines, medical devices and consumables.
  • ‘Service’ Any work or undertaking performed for the direct or indirect             benefit of another;
  • ‘Service Provider’ : ‘A person who promotes, supplies or offers to supply any service’.

Section 51(1)(b) of the CPA provides:

A supplier must not make a transaction or agreement subject to any term or condition if

it directly or indirectly purports to –

(i) waive or deprive a consumer of a right in terms of this Act;

(ii) avoid a supplier’s obligation or duty in terms of this Act;

(iii) set aside or override the effect of any provision of this Act; or

(iv) authorise the supplier to –

(aa)      do anything that is unlawful in terms of this Act; or

(bb)      fail to do anything that is required in terms of this Act … .’

As such, an exclusionary clause in a hospital contract would generally amount to an attempt to avoid a supplier’s obligations under the CPA and also deprive a patient of his rights under the CPA.

A Hospital/ Practitioner is obliged under the CPA to provide quality service to its patients. Section 54(1)(b) of the CPA provides:

When a supplier undertakes to perform  any  services for or on behalf of a consumer, the consumer has a right to –

the performance of the services in a manner and quality that persons are generally entitled to expect; …having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services’.

Most exclusionary clauses would contravene the above requirement because, by excluding a hospital’s liability, the clause would shield the hospital from its duty under the CPA to perform ‘in a manner and quality that persons are generally entitled to expect’.

Consequently, the effect of the above provisions, specifically ss 54(1)(b) and 51(1)(c)(i) of the CPA, will inarguably render most exclusionary clauses / indemnities in hospital contracts void.

CAREFUL

  • THE consumer has a right to expect goods to be reasonably suitable for the purposes for which they are intended, in good working order and free from defects, and that they are usable and durable for a reasonable period of time. In the medical context, this would relate to, for example, medical devices and prostheses, as well as medication.
  • All those in the supply chain (a producer, importer, distributor or retailer) can be held jointly and severally liable for any harm (injury, illness or death, for example) caused as a result of supplying unsafe goods, a product failure, insufficient instructions or warnings relating to any hazard associated with the goods – irrespective of whether the harm was the result of negligence on the part of any of the parties involved. The consumer would only need to prove harm caused by the faulty, unsafe or hazardous product.
  • Since the Medical Practitioner who delivered the treatment is the most easily identifiable person in the supply chain, she/he can be held strictly liable for the cost of the damages that may follow.

THE PATIENT’S RIGHT TO FAIR, JUST AND REASONABLE CONTRACT TERMS

INFORMED CONSENT / HOSPITAL / INDEMNITIES/ WAIVERS

 

IS condition / agreement fair and reasonable ?

This depends on:

The parties’ relationship;

Their relative capacity, education, experience, sophistication and bargaining position ( knowledge gradient), and

Negotiations and extent thereof.

Discuss MATERIAL RISKS by asking the question:

Would the reasonable patient, if warned of the risk or danger, be likely to attach significance to the risk and would the reasonable doctor be aware that the patient may attach significance to the risk?

In the Medical Context it is also important to note that the provisions of the National Health Act which prescribe the manner in which the patient must be INFORMED with regard to –

  • His/ her health status, subject to a form of therapeutic privilege;
  • The range of diagnostic procedures and treatment options available;
  • The benefits, risks, costs and consequences associated with such options;
  • The patient’s right to refuse medical treatment and the implications; and
  • The risks and obligations of such refusal.
  • The patient must be informed as far as possible in a language that he understands and in a manner that takes the patient’s level of literacy and education into account.
  • Medical / Clinical Notes have to be considered not only as medical documents but also as legal documents - “if it’s not in the notes, it didn’t happen”
    • Passing off rewritten notes as contemporaneous is a criminal offence;
    • Retrospective changes have to be clearly marked as such and dated and signed;
    • Disclosure of authentic, original clinical notes is essential when a claim is brought, failure to do so can make the claim indefensible.

MEDIATION

The current complicated and entrenched nature of the medical litigation system in South Africa has caused a much publicised “medical malpractice crisis”. This has required a multifaceted look at various solutions incorporating both the public and private health sectors.

Medical practitioners as well as personal injury lawyers need to consider alternative forms of dispute resolution, in line with constitutional values as well as fair practice within the framework of the law.

Mediation, as an alternative form of dispute resolution, may be a tool capable of addressing the non-financial needs of parties involved in a medical negligence/malpractice disputes.  Much of this potential is as a result of the opportunity afforded to both the patient and the alleged medical practitioner to tell their stories/explain their actions respectively, without the constraints and interruptions of litigation rules and procedures.   

Mediation moves the parties away from a blame and punishment narrative to a more conciliatory relationship where each party can feel heard by the other. This results in the letting go of anger and clearing up of misunderstanding and miscommunication.

Nature of mediation

Mediation is a confidential and without prejudice process in which the mediator assists the participants to reach an agreement through joint-problem solving.  It is voluntary and any participant may at any stage terminate the mediation.  To encourage discussion, the mediator will not disclose to the other participant any information that has been conveyed to him in private by a participant, unless the participant had given him express permission to disclose such information.

Mediation is non-binding until everything is agreed, reduced to writing and signed by both participants.  The participants retain all their rights and legal remedies, if the mediation is not successful.  The mediator may assist the participants to generate settlement options, but he/she will not impose his/her views or solutions on them. The mediator has an ethical obligation to work equally hard on behalf of all participants during the mediation.

That participants who appear on behalf of principals, shall have settlement authority, or have a person with settlement authority on standby, telephonically during the mediation.  The mediator’s fee shall be for time spent with the participants and for time required studying documents, researching issues, corresponding, drafting and finalising agreements. Most mediation agreements require that the Mediators fees be shared between all parties in the mediation.

APPLICABILITY

Time and time again, patients proceed to seek legal advice with the aim of claiming damages as a result of a mere breakdown in communication between the parties.  Historically, this has been backed by the medical professionals’ indemnity insurers’ fear of the medical practitioner incriminating themselves or providing an “admission of guilt”.   This merely fuels the practitioner’s frustration in not being able to defend or give reasons for the treatment rendered.

Medical negligence/malpractice complaints affect medical practitioners emotionally and escalates already burdened schedules and stress levels. These allegations have the potential to harm not only their reputation and career, but also their confidence in their trade and the delivery of treatment to future patients.

It has been realised that hearing a healthcare practitioner apologise with genuine remorse could be pivotal in resulting in an acceptance of a settlement or in the resolution of a dispute in total.

Medical negligence cases are usually complicated, involving contested facts and legal principles.  This results in a monumental power gradient between the patient and medical practitioner. It is accordingly vital that the medical mediators are trained to bridge this communication gap by having the ability to deal with the complex subject matter of the dispute, as well as be familiar with medical terminology and culture.  

The medical mediator should be sensitive to the fact that the injured patient or her family may be incredibly emotional or be experience intense grief.  This should be respected, yet contained in ways which are specifically taught. The mediator must also continuously urge both parties to participate in making sure complex wording and ideologies are simplified to maintain a balance of power and promote open communication.

In general the negative aspect of the litigation process includes:

  • The inability of the litigation to deter medical negligence.
  • The detrimental effect on the doctor/patient relationship.
  • The high emotional and financial costs to litigants.
  • The procedurally inefficient cumbersome and time consuming process of litigation.

Moreover, the litigation system has been found lacking in that it does not adequately address compensation for patients that suffer injuries due to negligence and fails to encourage improvement in the quality of service. (Sybblis S ‘mediation in the health care system: creative problem solving’ 2006 (6:3) Pepperdine Dispute Resolution Law Journal 502 – 503)

Medical negligence litigation is also regarded as,  “an extremely expensive, inequitable and unsatisfactory process for every party involved.”  Both plaintiffs and defendants in the action must spend an inordinate amount of money to prepare for possibly go through a trial.  The litigation process is a very long one, participants tend to leave the process emotionally exhausted, and the consequences of litigation are high for both sides, especially when parties walk away having spent a lot of money but are not necessarily made better of from their respective perspectives. (Natasha C & Meruelo JD ‘mediation and medical malpractice’ 2008 (29:3) Journal of Legal Medicine 285ff).

Mediation processes are regarded as well-suited to resolve medical negligence disputes for the following reasons:

  1.    Mediation is a confidential process that is capable of avoiding unwanted and unnecessary adverse publicity for the medical professional or institution.
  2.    Mediation is more expedient and cost effective than the usual form of litigation which takes on an average of 4-5 years.
  3.    The parties to the mediation retain a greater degree of control over the process and outcomes than in litigation.
  4.    The process of mediation is much more likely to leave the doctor/patient relationship intact as it is far less acrimonious than litigation.
  5.    If a negotiated solution cannot be achieved in the mediation the parties can revert to litigation so as to protect the patient’s rights.
  6.    In addition to compensation the process may provide the patients with an opportunity for therapeutic resolution of their claims by addressing the following:

(a)       an opportunity to explain or receive an explanation

(b)       an expression of regret

(c)        an apology

(d)       an expression of sympathy

(e)       an expression of empathy

(f)        the ability to gain closure

(g)       the conveyance of forgiveness

(h)       restoration of a valued relationship  (Emanuel L and Mills M ‘Medical negligence, litigation and mediation’ 2002 (5:4) ADR Bulletin Art2 1 ff; Bogdanoski T ‘Medical negligence dispute resolution: A role for facilitative mediation and principled negotiation’ 2009 (20:2) Australasian Dispute Resolution Journal 77)

When is the best time to mediate?

This is dependent on the complexity of the dispute.  There will often be a need to make sure that all relevant medical and hospital documents are collected and provided to an expert to assess.  An independent joint expert would be preferable in mediation cases to assess liability.

It is our opinion that the sooner the mediation process is started, the better. The process can be ongoing, but the sooner the parties are in agreement about confidentiality and documents are exchanged on a “without prejudice” basis, the more time and money can be saved.

Contact Us

LANSER LIEDTKE AND ASSOCIATES INC
 --
EMAIL info@llalaw.co.za

TEL +27 21 554 2135

CELL +27 72 341 1424

FAX 086 239 9252