NHS Resolution's claims mediation service was launched on 5 December 2016 and has since then proved extremely successful as a means of supporting patients, families and NHS staff in working towards the resolution of legal cases and clinical disputes.
A report resulting from an evaluation of NHS Resolution's claims mediation service, entitled "Mediation in healthcare claims – an evaluation", was published earlier this year and can be found here
The Clyde & Co/NHS Resolution case outlined below highlights the success of mediation where the parties resolved a longstanding claim without the need or expense of proceeding to litigation
The mediation was conducted without the assistance of counsel for the defence and settled at a fraction of the claimant's pleaded value.
The claim arose from an alleged substandard procedure during a laparoscopic prostatectomy. It was alleged, in part, that leaving a Hem-O-Lok clip in situ was negligent. The claimant stated he had suffered severe pain and stress and that he was unable to perform day-to-day activities without pain until the clip's removal four years after the procedure.
Liability was denied on behalf of the Trust.
Mediation was offered as a way of resolving the issues between the parties.
Ahead of the mediation the parties exchanged medical evidence. The claimant served a schedule of loss totalling over £200,000.
The mediation was attended by the mediator, the claimant, the claimant's family, the claimant's solicitor and counsel for the claimant. NHS Resolution and the Trust were in attendance.
The mediation began with an emotionally charged meeting between the mediator and the parties. The claimant felt his integrity had been questioned in view of the defendant's denial of liability. It was made clear by Clyde & Co that this was not the Trust's or NHS Resolution's intention.
The mediation proceeded with the defence taking a robust stance in respect of the weaknesses in the claimant's case. The claimant responded to the defendant's arguments by making a damages offer which did not reflect the value of the claim as detailed in the schedule of loss. In view of some risks on breach of duty, following difficult negotiations, a very low costs inclusive offer was made by the defendant and accepted by the claimant.
Points to remember
This claim highlights the success of mediation as a means of establishing what a claimant is seeking as an outcome to their claim (in this case it was important to confirm that the claimant's integrity was not being questioned), and resolving claims at an early stage.
Originally published by Clyde & Co, on June 2020
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