Is talk cheap?

According to a recent National Audit Office (NAO) report, 'Handling Clinical Negligence Claims in England', the average time for a claim to be concluded in 1999-2000 was five and half years. Even more worrying, 22 per cent of cases outstanding in that year were more than 10 years old, with the average being 8.3 years old. Worse yet, in small to medium-sized claims, the costs of the action usually exceeded the awards given by up to 50 per cent.
When one considers at least five years of escalating lawyers' and experts' bills, the huge cost to the public purse, not to mention the massive expense of caring for claimants who may have been rendered severely disabled this is obviously not good enough. Clinical negligence claims are costing the public and the Government a fortune.
When Health Minister Alan Milburn launched his 'call for views', a consultation leading to a white paper that recommends ways to reform the system, he voiced the views of probably everyone involved in the settling of clinical injury claims. “Fundamental reform of clinical negligence is long overdue,” he says. “The current system is slow and bureaucratic. It doesn't work for NHS patients or for NHS staff.”
One of the key recommendations of the NAO report is to examine mediation in more detail. In many cases, the NAO found that a simple apology or admittance of fault was what many claimants required. Of course, the record on lengthy clinical negligence trials has been deteriorating for years, but according to Bill Marsh, director of the Centre for Dispute Resolution (CEDR), the massive shift in attitude required to effect change is finally beginning to take place.
“It's true that the uptake [of mediation in clinical negligence claims] hasn't been anything like it should have been in relation to the number of claims litigated,” he says. “But these are cultural changes, and cultural changes take time. You can't overstate the degree of change that has already taken place since the Woolf reforms.”

“The NHSLA hasn&#39t changed. When we try to negotiate, they&#39re just as awkward as they always were”
Bill Braithwaite QC, Exchange Chambers

As Marsh points out, the current system's major limitation is that it provides only one form of redress – money. “You can't issue a writ for an apology, after all,” he says. “When I've done mediations, the turning point has often come when there's been an apology or an explanation, which is not necessarily an admission of fault. This humanises what is otherwise a dehumanised process. This is a fundamental element of the contribution that mediation can make.”
Indeed, National Health Service Litigation Authority (NHSLA) spokesman David Towns points to a pilot scheme that has been running since June 2000. “We're telling our panel firms to mediate and we want to know the reason why if they don't,” he asserts. Perhaps it is hardly surprising that, in the face of this kind of attitude, the response from claimants, according to Towns, has been “disappointing”. Furthermore, this edict from on high must be somewhat worrying to panel firms, which according to several solicitors are not working in an atmosphere that is especially conducive to telling the NHS that it is in the wrong.
Indeed, one of the major flaws that must be overcome, according to many, is the NHSLA's in-built aversion to admitting guilt. Bill Braithwaite QC of Exchange Chambers in Liverpool dismisses the claims of what he calls the NHSLA's “media machine” as “superficial reasonableness”. “My perception is that they haven't changed. When we try to negotiate, they're just as awkward as they always were,” he claims.
Explaining why he thinks litigation takes so long, he says it is basically very difficult for claimants to prove that a doctor is in the wrong. “There's a lot of behind-the-scenes activity going on that makes it very difficult, and the NHS has the heavy guns and all the resources behind them. The NHSLA always has doctors available who are prepared to run new lines of defence, and different defences crop up all the time. If they can't run with one defence, they'll find another one.”
In Braithwaite's view, it is a lack of flexibility on the side of defendants and a lack of expertise all round that is responsible for the poor uptake in mediation. “In order for mediation to work, both sides need to be top quality and reasonable, and the defendant lawyers tend not to be,” he says. “In order to get onto the NHSLA panel, you have to be a Rottweiler and continue to demonstrate to be one. You can't tell them that their doctors have been negligent and that they must pay up.”
According to Marsh, however, it is not the NHS that is a bar to cooperation between parties, but the process itself. “The tendency is to claim the maximum and say that you're 100 per cent correct. But as sure as night follows day, what this will be followed by is a response saying that you're 100 per cent wrong and you have no evidence to back up your claim,” he explains.
Of course, the lawyers who do not share his charitable view of the NHS, and in particularly the NHSLA, are legion. Paul McNeill, head of the clinical negligence practice at defendant firm Field Fisher Waterhouse, says: “We're yet to receive an offer of mediation or have an offer by us of mediation taken up.
“I don't know what the Government's agenda is at the moment in relation to clinical negligence claims, but clearly one of the things they wanted to do is reduce costs. But is the way to reduce costs in mediation if mediation in itself is expensive? And not many lawyers have the experience to do it.”
This lack of experience is a major issue with many players involved in the field of clinical negligence. Although Arnold Simanowitz, chief executive of the charity Action for Victims of Medical Accidents (AVMA), is all in favour of mediation, he does not think it is the right choice as things stand for clinical negligence. “We have not been pushing for mediation in clinical negligence because we take the view that mediation is not ready for clinical negligence,” he says. “It is a very complex area. Not only are the legal and medical issues very complex, but the claimants are very vulnerable too.”
Marsh claims that, should mediation be taken up wholesale tomorrow, there are plenty of mediators around to do the job. “There's no doubt in my mind that the critical thing is to be a good mediator [rather than a specialist in clinical negligence]. People say it's different in clinical negligence, but they say that in banking, insurance and construction too,” he says.
Himself a trained mediator, Simanowitz thinks that a lack of specialist expertise is a problem, but also points to the problems faced by claimants on the big day. “There's a subtle pressure on the claimant – their case has often been going on for a long time, they're distressed and they come to a situation where they think that the problem will be resolved on that day,” he says. He adds that common factors, such as a mediator who is unfamiliar with the issues of the day and unprepared lawyers, generally put paid to this expectation.
Elucidating the many advantages of mediation, however, Simanowitz says: “It's non-adversarial, and you can deal with issues that litigation can't, such as explanations, apologies, and in some cases reconciliation to the health service – often claimants don't trust the NHS any more.” However, he also adds a note of warning: “Lawyers on both sides need to be educated as to what mediation actually means. It needs the goodwill and understanding of both sides, but that's a lot to ask and I'm not sure how it's going to happen.”
Another possible route for the consultation to take is the idea of no-fault payments, an idea backed by the Master of the Rolls. But according to McNeill, this would probably make the cost problem even worse. “For every 10 cases we get, we probably litigate in one,” he says. “If the Government is paying out in the other nine, then clearly this is doing the opposite of what it wanted to achieve. You could bring in a tariff, but then you'd have problems in relation to the Human Rights Act.”
However, since the Woolf reforms and other changes have been made to the clinical arena, McNeill has an optimistic outlook. “I suspect the success rate and time to trial has improved significantly [since only specialist lawyers were allowed to defend clinical negligence claims],” he says.