Mediating Clinical Claims

Mediating Clinical Claims


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Mediating Clinical Claims is a timely and detailed look at the growing practice of mediating clinical negligence claims in England, written by one of the UK's most experienced mediators of clinical claims. The book is aimed at all those with an interest in understanding why and how mediation is such an effective process in resolving such claims - claimants, healthcare professional and managers, lawyers, judges, policy-makers and mediators. It reviews research on what claimants and clinicians really want from healthcare complaints and claims. It offers help on how best to prepare for and conduct such mediations, giving numerous anonymised examples based on real mediations. This new title looks at: - How mediation of clinical claims has developed - How mediation differs from other processes - Practical guidance for all participants - The legal framework in which such mediation operates - The law and practice of clinical claims - Process design and the special problems of multi-party claims - Future developments. MediatingClinical Claims provides mediators, claimants, healthcare professionals and their legal representatives with all the guidance they need to ensure that a successful and fair outcome is achieved for all those involved in such mediations.

Product Details

ISBN-13: 9781526506405
Publisher: Bloomsbury Professional
Publication date: 06/22/2018
Pages: 280
Product dimensions: 6.14(w) x 9.76(h) x 0.80(d)

About the Author

Tony Allen first mediated clinical claims in the UK in the 1990s, and has been consistently rated as a leading mediator in this field by Legal Directories. He has written and trained on this topic in the UK and internationally. He is a Senior Consultant to CEDR, after 30 years of solicitor's practice followed by 12 years as a CEDR Director, and remains a Lead Member of CEDR's training faculty. He mediates complex cases for CEDR's Clinical Negligence Panel.

Table of Contents

Foreword v

Acknowledgments xiii

Introduction 1

Chapter 1 Party objectives in clinical claims 9

What patients and their families want out of making clinical claims 10

What healthcare professionals want when clinical claims are made 18

The no-fault compensation debate 22

Chapter 2 Settlement processes and trials of clinical claims 27

Different settlement processes in detail 31

Direct negotiation 31

Acceptance of Part 36 offers 32

Round table meetings 35

Mediation 37

A hybrid: independently-chaired RTMs (or is it really a mediation?) 39

Court trials of clinical claims 41

Chapter 3 The legal and procedural framework for clinical mediations in England and Wales 43

The general status of mediation and the agreement to mediate 43

Evidential privilege and confidentiality 44

A conflict between confidentiality and publicity? 47

Non-binding clinical mediation discussions and binding settlements 50

The neutral mediator as a potential witness 51

Mediation fees and costs 53

The place of mediation within the CPR 53

Pre-action conduct and the Pre-Action Protocol for the Resolution of Clinical Disputes 58

Halsey v Milton Keynes NHS Trust and pre-action and post-action mediation 62

Chapter 4 Coping with legal and clinical technicalities 67

The parties to clinical claims 67

A brief outline of court procedure in clinical claims 69

Pre-issue 69

Post-issue 69

Negligence claims: breach of duty 70

Negligence claims: causation 72

Deciding cases on liability and causation only 74

Negligence claims: damages 74

Claims by a living claimant 75

Claims relating to a deceased patient 76

Interim payments of damages 77

Interest 77

Tax 77

Expert reports on damages 77

State benefits recoupment 77

Practical considerations for mediators on monetary claims 78

Part 36 offers 78

Discounting 79

Valuation of future losses 79

Loss of a chance 80

Taking account of the risk of not succeeding 80

Obstetrics and gynaecology claims 81

Claims under the Human Rights Act and the ECHR 83

Expert medical opinions 84

Chapter 5 Choices over clinical mediations: whether to mediate, when, where, and with which mediator? 87

Whether to mediate a clinical claim? 87

New areas in which to consider mediation: fundamental treatment choices and early stage catastrophic claims 91

When should mediation be tried? 93

Complaints processes and serious incidents investigations 95

After (or before) an inquest 98

Where? The ideal venue for mediations 101

Who? Selecting the right mediator 101

Mediation schemes 105

Mediator neutrality 105

The process of choosing the mediator 107

Questions to ask when selecting a mediator 107

The overall problem of timing 109

Next steps 109

Chapter 6 Preparing for a clinical mediation 111

The initial stages of an agreed mediation 111

Pre-mediation preparation for mediators 111

Pre-mediation contact 111

Mediators and their own preparation 115

Pre-mediation preparation for claim ant teams 116

Where the defendants indicate in advance that they do not expect to make an offer at the mediation 121

Should counsel be instructed? 121

Preparing claimants for possible compromise 122

Cases with multiple claimants 124

Co-operation with defendants in preparation for a mediation 124

Pre-mediation preparation by the defendant team 124

The route towards mediation 125

The needs and potential contributions of the defendant team 125

Denying liability 126

Clinicians 128

Trust Claims Managers and GP Practice Managers 130

NHSR and MDO case handlers and other decision-makers 131

Multiple defendants 132

Expert evidence: a problem for all parties at the mediation 133

Conclusion 134

Chapter 7 The mediation day 135

The mediation day 135

Practical venue arrangements for the mediator 136

Private meetings with each party prior to any joint meeting 138

The joint meeting - a key encounter 144

The physical lay-out of an early joint meeting 146

Conduct of the joint meeting 147

Opening statements by each team 149

Making or declining to make offers at a first joint meeting 153

Ending a joint meeting 154

Working with multiple parties 155

Exploring options and risks 155

Later process choices 157

Mediators as evaluators? 158

Converting thinking into proposals 159

Chapter 8 Mediating clinical claims with multiple parties 167

Multiple defendants 167

Mediations with multiple claimants 172

The retained organs mediations 174

Alternative models and bespoke process design 181

Chapter 9 Settlement: what is a 'successful' clinical mediation? 185

Practicalities for settlement: written terms 188

Mediating appeals in clinical claims 190

Costs and funding 190

The relevance of funding 192

Private resources 192

'Before the event' (BTE) insurance 192

Conditional fee agreements and ATE insurance 193

'Damages-based' agreements (DBAs) and contingency fee funding 194

Legal Aid 194

How legal costs are controlled by the court 194

Problems over costs at mediations: the global offer 195

'Success' in mediation and benefits conferred 198

Chapter 10 The future for mediation in clinical claims 201

Postscript 213

Appendix A CEDR Mediation Agreement 217

Appendix B CEDR Mediation Model Procedure, 2018 Edition 221

Appendix C CEDR Code of Conduct for Third Party Neutrals 229

Appendix D European Code of Conduct for Mediators 233

Appendix E Typical Tomlin Order in a clinical negligence claim 237

Appendix F Mediation settlement agreement in the same case (if required) 239

Appendix G Pre-Action Protocol for the Resolution of Clinical Disputes 243

Index 253

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