Access to court, or access to justice? Mediation in medical negligence cases
Barney Jordaan1
Introduction
Section 34 of the Constitution provides that everyone ‘has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’. This allows for both a formal system of
justice operating in terms of legal norms and formalised procedures, and ‘informal’ systems, such
as mediation or private arbitration.
The primary goal of a civil justice system is the just resolution of disputes through a fair but swift
process at a reasonable cost. It has both a process and a substantive dimension. The process
used to achieve this must not only be fair, i.e. create a level playing field, it must also be designed
to produce a just result without unnecessary delay or excessive expense, which could render the
system inaccessible.
The substantive results that the justice system should deliver may either be rights or interests focused. The former is usually achieved through a rights-based process, namely, arbitration or adjudication where facts are adjudged against established principles of law to determine who is right
and who is wrong, who wins and who loses. Interest-based results typically involve the resolution
of the dispute by the parties themselves in a manner that satisfies their key concerns, under the
guidance of an independent and trusted third party (a facilitator or mediator).
The rights-based justice system provided by law and the courts is usually depicted as involving a
set of known rules and legal principles. These are applied by independent courts, to all persons
equally through a process which is procedurally fair and in which the substantive outcomes are determined through the objective application of established norms of general application.
This idealised view overlooks factors such as the ambiguity of law and differences in interpretation
of legal principles; potential conflicts among legal norms and rules; and the complicating effects of
legal formalism, technicality and ritual in the court process. It also makes unwarranted assumptions about the accessibility of court-based justice in terms of people’s ability to afford it, their understanding of it and ignores the reality that the bulk of cases settle before trial, thus depriving litigants of the very right that the Constitution affords them, i.e. the right for their cases to be heard.
The cost of, and delays in having one’s day in court also mean that access to courts has become
the preserve of a few. Delays, postponements and congestion of court rolls also add to the already
over-burdened public purse.
In the context of medical negligence disputes, which form the primary focus of this piece, the cost
of litigation against public health departments has a significant impact on the State’s ability to deliver quality health services. A recent news report2 states that the Gauteng Health Department is
facing negligence claims amounting to R1.28-billion for the 2012/2013 financial year. Eastern Cape
faced claims of R876-million last year, up from R4.5-million in 2006 whereas North West paid out
R13.3-million in November for an instance of negligence at a state hospital. Malpractice cases include misdiagnoses, the supply of the wrong medication, surgical swabs or instruments left in people during surgery, and hip replacements that are not done properly. Health Minister Aaron Mot-
1
BA (Law) LLB LLD; professor extraordinaire, University of Stellenbosch Business School. I am
grateful for constructive comments on earlier drafts received from Adv. Alan Nelson, SC; Adv. Diane Davis; Adv P van den Heever, all of the Cape Bar and also practising mediators; and Felicity
Steadman of Conflict Dynamics. I take full responsibility for any errors that remain.
2
http://www.timeslive.co.za/news/2014/01/17/hospital-horrors-costing-sa-plenty, 17 January 2014.
See also M S Pepper & M N Slabbert, ’Is South Africa on the verge of a medical malpractice
storm?’ June 2011 SAJBL, Vol. 4, No. 1.
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soaledi has set up a team to investigate the increasing number of medical negligence cases. He
has suggested a cap on payouts to help health departments avoid bankruptcy.
This is not only a problem in the public health sector, of course.3 According to the Medical Protection Society, 4 the cost of reported claims more than doubled over a recent 2-year period. Claims
exceeding R1 million have increased by nearly 550% compared with those of 10 years ago, while
claims value at over R5 million have increased by 900% in the past five years. The growth in negligence claims has had a number of consequences, including a dramatic increase in the cost of insurance for doctors. A gynaecologist or neurosurgeon could pay as much as R200 000 per annum
in insurance premiums, leading to higher costs for patients and making work in these specialist areas unsustainable.
Other consequences of increased litigation include a move away from compassion-centred care
towards so-called ‘defensive’ medicine: because practitioners might see their patients as a potential medical liability risk, many additional tests are done in anticipation of possible legal action.
Thus, the cost of health care is driven up.5 Another consequence that has been noted is that the
prevalence of claims has a negative effect on patients’ perceptions of their treating doctors, thus
fuelling an already sometimes distrustful relationship between the professional and the patient.6
The irony here is that research shows that doctors who show compassion towards their patients,
e.g. by spending on average 3 minutes more per consultation ‘connecting’ with the patient, are less
likely to be sued in the event of a mishap than those who don’t do this.7
In the long run, the increased costs and risks associated with medical practice is likely to increase
the cost of health care for all patients and putting it beyond the reach of ordinary people.
Problems with litigation
Very few people who have experienced a litigation process from beginning to end are likely to look
back at the experience with a sense of pleasure. Think of it this way: litigation involves entrusting
their conflicts and the associated risks to a system over which they have no control, that is renowned for its high costs and delays, that is more than likely to destroy whatever business or other
relationship they had with the other party and is also potentially subject to numerous appeals - all
in pursuit of an outcome that is uncertain and could go either way. It is absurd and makes neither
economic nor business sense. Add to this the fact that all the effort and strain will in any event
probably result in an out-of-court settlement before trial after massive costs had been incurred, and
the picture becomes even more absurd.
The former Chief Justice, Mr Justice Sandile Ngcobo, in an address delivered in 2004 titled ‘Delivery of Justice: Agenda for Change’ remarked that the key challenges the local judicial system faces, aside from logistical and administrative challenges, were what he referred to, as the ‘twin problems’ of cost and delays in the justice system and, second, developing a justice system that is just,
fair, inexpensive, expeditious, understandable and responsive to the needs of those who use it.
These challenges, he said, ‘go to the very heart of the judicial function, which is the delivery of justice.’
3
http://www.samj.org.za/index.php/samj/article/view/6457/4857 and
http://repository.up.ac.za/bitstream/handle/2263/18698/Pepper_Is%282011%29.pdf?sequence=1
4
See J Malherbe, ‘Counting the cost: The consequences of increased medical malpractice litigation in South Africa’, 2013 SAMJ, Vol. 103, No 2.
5
Pepper & Slabbert, 32.
6
Malherbe, 3; Pepper & Slabbert, 33.
7
W Levinson & others, ‘Physician-patient communication: the relationship with malpractice claims
among primary care physicians and surgeons’, 1997 Jnl. of the American Medical Association, Vol.
7 553.
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In its first report several years ago, 1983 to be precise, the Hoexter Commission found that our civil
litigation system was characterised by cumbersome, complex and time consuming pre-trial procedures, high costs, overloaded case rolls which necessitate postponements, and delays in the actual process of trial which oblige litigants to conclude settlements that very often do not satisfy their
interests or bring about a final resolution. These factors, the Commission found, conspired to produce a system that was gradually becoming inaccessible to the average person.8
Mediation
It is not suggested that there is no role for litigation in ensuring justice, but, like warfare, should always be a last resort. It should be the alternative if a problem-solving process such as mediation
fails to provide a mutually agreeable solution to a dispute. Currently, however, most legal practitioners view mediation as the alternative and litigation as the primary process for resolving differences.
What is mediation and how does it work? Mediation is a flexible process conducted confidentially
in which an impartial third party actively assists the parties in working towards a negotiated settlement of a dispute or difference, with the parties in ultimate control of the decision to settle and the
terms of resolution.
As the primary form of ADR or Alternative Dispute resolution, mediation is based on an alternative
set of values in which formailty is replaced by informality of procedure; trial procedures by direct
participation of the disputants; state appointed decision makers by the involvement of trusted third
parties; where costs and delays are minimised, speedier resolution is achieved and the parties are
given control over the outcome of their dispute.
Mediation is directly accessible and capable of being responsive to the parties’ real personal,
commercial and other interests. In his report on reviewing civil litigation costs in the UK, Sir Rupert
Jackson, a member of the Court of Appeal, found that mediation, as the principal method of ADR,
‘should be at the heart of every litigator’s toolkit’.9
Mediation is certainly not a panacea for all disputes nor is it always appropriate. Mediation does
however offer many benefits to disputing parties, including speed of resolution, cost containment
(considering the time value of money); confidentiality; risk containment; control over the final outcome; less stress and formality, and limitation of damage to ongoing relationships. Mediation is
also conducted on an without prejudice basis, which means that failing settlement disputing parties still have the option of having their day in arbitration or the civil courts. Statistics available locally and from abroad suggest that the bulk of cases submitted to mediation settle, and settle
quickly.
In one of the rare judgments where mention has been of mediation, Acting Judge Brassey in
Brownlee v Brownlee,10 had the following to say:
Mediation can produce remarkable results in the most unpropitious of circumstances …. The
success of the process lies in its very nature. Unlike settlement negotiations between legal advisers, in themselves frequently fruitful, the process is conducted by an independent expert who
can, under conditions of strict confidentiality, isolate underlying interests, use the information to
identify common ground and, by drawing on his or her own legal and other knowledge, sensi-
8
Commission of Inquiry into the Structure and Functioning of the Courts, Fifth and Final Report
Part I (1983) para 3.3.3.3 p. 20.
9
Full report at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/jackson-finalreport-140110.pdf
10
Judgment delivered on 25 August, 2009 in the South Gauteng High Court.
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tively encourage an evaluation of the prospects of success in the litigation and an appreciation
of the costs and practical consequences of continued litigation, particularly if the case is a loser.
Mediation compared with litigation(including arbitration)
In summary, and compared with certain value criteria,11 mediation offers a far better option for the
resolution of most civil and commercial disputes, including disputes involving alleged medical negligence:
Value criteria
Mediation
Litigaton / arbitration
Cost
Low
High
Time
Quick
Slow
Who decides?
The parties
Judge or arbitrator
Impact on relationships
Low
High
Scope for tactical manoeuvring
Limited
Very high
Who controls process?
The parties
The parties’ lawyers
Rules of evidence
Don’t apply
Apply
Horizon focus
Focused on the future
Focused on the past
Negotiation form
Collaborative
Adversarial / antagonistic
Communication
Intense and constructive
Limited and defensive
Ability to satisfy all parties
Very high
Virtually nil
Outcome
Decided by the parties
Decided by a third party
Capacity to find creative solutions
Unlimited
Virtually nil
Stress factor
Tensions released
Highly stressful
Confidentiality
Private, off the record, without
prejudice and entirely confidential
Public record
Local developments
There have been some developments towards a reform of the civil justice system since the Hoexter report was published in 1983. In May 2010 Cabinet approved terms of reference for a Civil Justice Reform Project, among others, to increase the effectiveness of the civil courts and to integrate
ADR (court-based mediation and arbitration) into the system. One of the products of this process is
11
Source: International Mediation Institute, The Hague www.imimediation.org
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the Mediation Rule which are likely to take effect as a pilot project in the lower civil courts sometime this year.12
Resistance to mediation
Yet, despite this; despite its increasing popularity among other nations, including a number of other
African countries and some key trading partners;13 despite its use for many years in family disputes; despite its long and successful track record in employment disputes and despite the fact
that hundreds of mediators have been trained in the skills of civil and commercial mediation in this
country, the uptake from the public, business and the legal profession has been low. Is this simply
because members of the legal profession are reluctant to give up their adversarial weapons?
While lawyer resistance almost certainly plays a big role, it should immediately be pointed out that
lawyers here and elsewhere have been at the forefront of mediation developments. What causes
this resistance locally has not, to our knowledge, been determined through any credible surveys,
but several surveys about lawyer attitudes to ADR and mediation in particular have been done
abroad which point towards the following as key factors possibly explaining the reluctance to advise clients to try mediation:
• Ignorance among lawyers and their clients of the process, how it works, its benefits and how it
can be used by lawyers to enhance their own skills set for improved client service;
• Legal culture: mediation does not fit with the traditional practice for running a case. It involves
earlier case preparation and a greater sharing of decision-making control with the client than
lawyers may be comfortable with;
• It involves an unfamiliar process leaving even the most experienced lawyers unsure of their footing: instead of focusing on who is right and who is wrong, mediation requires a focus on disputants’ diverse interests, including commercial and personal ones, that need to be integrated into
a sustainable solution to the real problems they face;
• Law school education typically does not include exposure to integrative problem-solving techniques central to mediation;
• Client attitude and appetite for conflict and confrontation (yet experience shows that even the
seemingly most intractable disputes tend to settle at mediation); and, of course,
• The impact on fees. The pernicious effect of the hourly rate14 leads to a zero sum situation where
the client prefers a lower fee and the lawyer a higher one. Ultimately, however, someone pays
for the lawyer’s time, i.e. either the client or the lawyer. Alternative fee arrangements are possible
that would alleviate this concern while assisting with improved cash flow and just rewards for the
quality of the settlements arrived at and the efficiency with which client resources and time have
been managed.
To what extent lawyer attitudes about mediation impact on their clients’ knowledge of and interest
in mediation is difficult to say, but it would be safe to predict that ignorance or negativity on the part
of a party’s representative will surely affect an uninformed client’s attitude. We have, I believe,
reached a stage in the development of mediation practice in this country where those practitioners
who continue to resist its use bear the onus of providing plausible reasons why mediation would
not be in their clients’ best interests. In the UK, legal practitioners are compelled to provide clients
with a risk and cost assessment before embarking on litigation and also to inform them of the
12
Since 1994, the inclusion of ADR provisions has become a feature of new legislation, including
the Companies Act, the national Credit Act, Consumer Protection Act, to name a few. In fact, at
last count there were in excess of 50 pieces of legislation providing for ADR.
13
E.g., Uganda, Kenya, Namibia, Mauritius, certain states in Nigeria, Australia, large parts of the
USA and Western Europe as well as a number of Asian nations, e.g. Singapore.
14
T L Sager & S A Lauer, ‘The pernicious effect of the hourly rate on client/counsel relations’,
http://www.thevalue-ablelawyer.com/wp-content/uploads/2011/01/The-Pernicious-Effect-of-theHourly-Rate-on-Client-Counsel-Relations.pdf
Page 5 of 7
availability of the mediation alternative. Surprisingly, there is no such obligation on legal practitioners here.
In the US there is a well established duty on the part of lawyers to advise clients of ADR options in
resolving disputes, and lawyers who have not done so have in some instances faced sanctions.15
Mediation in medical negligence disputes
Aside from costs, delays, investment of management time and uncertainty over the outcome, these
disputes also involve potential harm to the reputations of the defendants (medical practitioners and
hospitals) if the case becomes pubic knowledge. The plaintiffs, on the other hand, face what has
been referred to as ‘inner trials’16 by the experience of litigation, including coping with trauma and
loss; coping with strong emotions while uncertainty about the future tends to increase the stakes in
these kinds of disputes.
Mediation provides the parties in medical malpractice cases with a number of advantages, including speedier resolution, closure and accelerated payment in the case of settlement. For the defendants, typically medical professionals and hospitals, the advantages include confidentiality, closure, limitation of risk and a potentially beneficial impact on insurance and premiums. For insurers
the benefits would include risk-discounted settlements at minimal cost. Because mediation can be
carried out much earlier in the process, one does not need to have all the evidence assembled in
order to form a view that may lead to settlement.
Plaintiffs ‘get their day in court’ - something no legal system can guarantee - in an environment that
is not as daunting as a court room and certainly not as threatening. They also get total flexibility in
the manner in which the process is conducted; a respectful acknowledgment of their trauma; the
opportunity to express feelings and to manage the expression of feelings in an open and honest
way; an explanation of what had happened; and reassurance of reform to prevent a recurrence.
One big advantage of mediation is the fact that unlike in legal proceedings, it allows for creative
settlements that often deliver high value to the plaintiff at relatively low cost to the defendant. Examples from practice17 include:
• agreement on a fast-track IVF procedure for a woman who lost her child as a result of a
ruptured Caesarean scar where her ability to conceive was compromised;
• an offer of future employment for the wife and soon-to-be widow of a cancer patient who
used to work for the hospital that had failed to spot his lesion;
• participation in discussions over changes in procedure and departmental risk assessments;
and
• an acknowledgment by a practitioner of the plaintiff’s situation and trauma.18
Benefits for the legal profession
How can the legal profession benefit from promoting mediation in medical malpractice disputes?
First, being trained as a mediator gives medical malpractice specialists the opportunity to develop
an additional specialist mediation practice. Second, and provided they are acquainted with principles of mediation advocacy, they would be equipped to also represent their clients in that process.
Third, good settlements for their clients (in terms of saving time and risk limitation) will enhance
15
http://www.acrel.org/Documents/Seminars/2005%20Phillips%20-%20ADR%20disclosure.pdf
J R Cohen, ‘Conflicts as inner trials: transitions for clients, ideas for lawyers’, 2012 Cardozo Jnl.
of Conflict Resolution, Vol. 13: 393.
17
See T Allen, ‘A new way to settle old disputes: mediation and healthcare’, http://www.medicolegalsociety.org.uk/articles/mediation_and_healthcare.pdf
18
For some UK case histories, see http://www.effectivedisputesolutions.co.uk/civil-commercialmediation-services-personal-injury-clinical-negligence-disputes
16
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their reputation while also ensuring better cash flow with a higher turnover of settlements. Finally,
mediation provides an opportunity to assess the real weaknesses in one’s case.
A way forward
What can interested parties who are convinced about the benefits of mediation do to promote its
use in disputes they are involved in?
• Insurers need to find creative ways of making it worth the while of their clients, i.e., medical
practitioners and hospitals, to commit to mediation as a first choice solution in the event of a
claim, e.g. by offering discounted premiums to those who have pledged to do so.
• Legal practitioners for plaintiffs could provide their clients with a detailed analysis of the pro’s
and con’s of litigation versus mediation, highlighting the benefits for the client of early resolution
and payment of any damages that might be due. (Of course, for the practitioner mediation can
provide better cash flow, increased case turn over and possibly enhanced reputation.)
• Legal practitioners acting for defendants (medical practitioners and hospitals) have a vested interest in saving time and money for their clients - persuading them to use mediation would
seem to be the obvious thing to do.
• Medical practitioners and hospitals can encourage mediation by requiring patients, when registering their details can include a mediation clause in their contracts with patient so that mediation is already part of the complaints or disputes procedures in the event of any dispute. While
the patient cannot be forced to utilise mediation, despite this commitment, the commitment allows either party to a dispute to rely on it to persuade the other to do the same. In this way an
offer to mediate cannot be seen as a sign of weakness, something those who are not knowledgeable about mediation often fear.
Conclusion
Mediation offers many benefits for all role players in medical malpractice cases. It is typical of the
mediation process that it is capable of finding creative solutions to what at first blush look like competing interests but very often turn out to be merely different, complementary interests that can be
crafted into a solution that satisfies all but the most self-interested.
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