A no-fault compensation scheme for medical accidents may be a desirable objective but, in the real world, society will be grappling with disputes between patients and their medical carers for many years to come.

Unfortunately the present system of pursuing negligence claims through the judicial process is widely regarded as clumbersome, unwieldy, costly and slow. Being adversarial it also does little to support and preserve the trust relationship between doctor and patient. However, a number of other fault-based initiatives have been suggested. How do they compare?

Lord Griffiths has suggested that "on paper" arbitration should be available as an option.

The key point is that arbitration could only take place if all the parties involved agreed to it. It would not appear to be suitable for the more complex and problematic cases which would normally require an oral hearing with cross-examination of witnesses. Little advantage is gained over litigation in these circumstances, and indeed, such an arbitration can be slower and more costly than litigation.

However, paper-only arbitration could be useful for quickly resolving disputes over quantum in cases where liability is admitted, and as a cost-effective way of defending vexatious claims with little merit.

Another fault-based idea, put forward by the Association of Community Health Councils for England and Wales (ACHCEW) and the Action for Victims of Medical Accidents (AVMA), is for the establishment of a "Health Standards Inspectorate" (HSI). It would replace not only the existing complaints procedures within the NHS but include within it a compensation scheme - though accountability and explanations as to what went wrong would take precedence over damages.

Unfortunately the concept has little to commend it to the health care provider: all stronger cases would remain in litigation where full compensation could be awarded, leaving the proposed HSI to deal with the less clear-cut situations where the claimant may well be expected to be given the benefit of the doubt.

Alternative dispute resolution (ADR), on the other hand, has a lot more going for it. The most widely practised form of ADR is mediation, whereby the parties choose a neutral mediator to discuss options for settlement. However, the mediator has no authority to come to a binding decision of his own and, if a mutually agreed settlement cannot be reached, the process is simply abandoned.

The advantages of ADR, in the appropriate case, is that the procedure is quick and should cost less than the current common law system or indeed any form of arbitration. The involvement of a neutral mediator has the effect of exposing weaknesses in a party's position which might not be recognised merely through without prejudice discussions between the parties. It also helps to preserve relationships.

A lead from the Department of Health is called for in this area. Perhaps the Department could adopt a mediation clause as an amendment to the Patients' Charter. Local health bodies will then have a signal to follow suit and thereby adopt a similar clause in their own Patients' Charter handbook.

The Lord Chancellor is to be encouraged to set up a pilot scheme similar to that undertaken prior to the publication of his consultation paper on mediation and the grounds for divorce.

In the meantime we can at least take comfort from the fact that there have been vast improvements recently in the manner in which medical negligence cases are conducted through the courts. These result from a number of procedural changes to personal injury actions generally - the most significant of which is that the parties must exchange experts' reports in advance rather than traditional "trial by ambush" tactics.

Furthermore, the Law Society has established a medical negligence panel, predominantly for plaintiffs' solicitors. This should greatly improve the quality of the representation available to plaintiffs and ensure a level of expertise in the procedures of a medical negligence case without which many cases flounder. It was also announced that Trusts were considering a plan to establish a panel of approved solicitors to carry out defence work.

It is be hoped that, with sufficient flexibility of approach therefore, a combination of traditional but improved court litigation, some arbitration and mediation will make considerable headway in resolving medical negligence disputes in an effective and just fashion.

Simon Pearl and Gary McFarlane

Simon Pearl is a specialist pharmaceutical/healthcare partner and Gary McFarlane is a senior healthcare lawyer at international insurance law firm Davies Arnold Cooper.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances from Simon Pearl (Tel. 071 936 2222) and Gary McFarlane (061 839 8396).
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