Cases pertaining to medical negligence are usually tragic. In most cases, the victims are rendered disabled for life or may even die. Where physical injury results from medical negligence, it is often accompanied by emotional trauma both of which may never be cured even where the individual receives some form of compensation, with or without recourse to formal legal action. In other cases where the victim dies, families may be deprived of breadwinners or loving children and may elect to undertake legal action as the estate of the deceased, claiming compensation for wrongful death. In either case, medical negligence cases are often very personal and emotional: for the victim or the family that may have been left behind.
However, resorting to litigation for the resolution of these disputes may not be helpful to the victim and their families as it forces them to relive their tragic experiences. Studies have also shown that negligence is often difficult to prove because of the difficulty in obtaining an expert who will be willing to testify to prove that the standard of care given by the doctor against whom the action has been instituted fell far below that of a reasonable medical man. Secondly, contrary to widespread opinion in medical circles and in the general society, money is usually not the primary motivating factor for instituting medical negligence cases. In many cases, the victim is driven essentially by emotional factors and may simply desire the doctor to take responsibility for his “wrongdoing” in order to obtain closure.
Furthermore, medical negligence cases are also especially difficult because the victim is not the only one who strives to obtain justice. The doctor or other health care professional against whom the action is brought also stands to have his reputation or that the hospital tarnished, especially with the influence of social media. The health care professional, who in many cases, believes that he has exercised the standard of care to be expected of him may also see the case as a betrayal of trust. The process of litigation may thus be prolonged as the defendant seeks to clear his name and any proposal for settlement following the commencement of legal action may be rejected in the belief that this implies guilt and might tarnish his reputation.
This difficulties can however be easily addressed by alternative dispute resolution. The Lagos State Multi-door Court Law 2007 defines ‘alternative dispute resolution’ as the entire range of alternatives outside the courtroom that involve third-party intervention to assist in the resolution of a dispute[1]. It also defines ‘mediation’ as the voluntary process for resolving disputes with the assistance of a neutral third party who facilitates dialogue between disputing parties and helps them privately and collectively to identify the issues in dispute, reach settlement of the dispute and mutually accept the settlement.
It has been my experience in medical negligence cases that alternative dispute resolution – in particular, mediation – is often helpful in resolving medical negligence cases. It is cost efficient, gives the victims/families of the victim closure, encourages the doctor or the health care facility to be more careful to prevent circumstances that will lead to a lawsuit, shows compassion/empathy and improves healthcare. In most cases, cases that go to mediation are usually settled either during mediation or following mediation for reasonable sums, an explanation for the course of treatment that was administered, an apology by the defendants or a simple expression of empathy. Mediation is effective for both the doctor and patient because it moves the parties away from “guilt and punishment” to “empathy and reconciliation”. Mediation creates options and solutions which litigation cannot provide such as the establishment of funds in the memory of a family’s deceased relative who died as a result of medical negligence. Valued relationships between claimants and defendants are also often restored where parties fully participate in the process of mediation.
From the foregoing analysis, it is evident that mediation creates a healthy environment which helps to foster better relationship. Parties communicate to each other their interests, fears and concerns. Parties are also spared the emotional trauma and the uncertainty in litigation. Thus, it is important that parties seeking redress in medical negligence cases embrace mediation as a means of dispute resolution.
IFEOMA OKEMINI AROWOLO
Senior Associate,
Health Ethics and Law Consulting
[1] LAGOS MULTIDOOR COURT LAW 2007.
