Mediators could stem the tide of medico-legal litigation in SA but doing so will mean spreading the word about the alternative to litigation.

Mediation could ease SA’s medico-legal woes but it’s no quick fix

Janine Simon-Meyer
South Africa is now home to more than 90 trained medical mediators, but there’s not much work to go around - yet.

COMMENT

Medical litigation: it’s pushing the country’s scarce gynaecologists out of work and threatening to bankrupt the national health system. Now, more than 90 people, myself included, have been trained to help. So why has it been so hard to?

Earlier this year, Bhekisisa revealed that dozens of gynaecologists were likely to leave the profession by the year’s end because of rising insurance prices that are largely fuelled by high rates of litigation. By March 2016, medicolegal claims lodged against the health department in the past five years amounted to more than R37-billion, Health Minister Aaron Motsoaledi told the news service in June.

The minister’s statement came just months after he resolved that all medicolegal disputes relating to state health facilities be referred for mediation. Last week, the South African Medico-Legal Association (Samla) announced that the Gauteng health department will go ahead with a proposal to launch a pilot project to investigate how it can make better use of mediation to save millions in litigation. This is energising news.

Since the minister’s declaration, dozens of people like me have been accredited as medical negligence mediators, but as yet few of us have been called on to do so.

We’re a mixed group and include people such as medical negligence and personal injury lawyers, academics, mediators, healthcare practitioners, administrators — and me, this health journalist-turned-development communications practitioner.

I was encouraged to respond to the Samla call for prospective mediators by friends in the field and got hooked because it’s immediate and effective.

Health journalists tell the stories of people and systems in conflict, but mediators create a space to unknot the strands of the dispute and resolve it.

In development communications, practitioners analyse evidence and strategise opportunities for communication and dialogue so people can make positive, healthy changes in their lives. It can take months or even years before this kind of communication results in measurable shifts in behaviour, social norms or local conditions.

In mediation, it can take just one day to generate agreement, with immediate benefits for all parties concerned.

Mediation can also help people to  avoid the stress, uncertainty and high legal costs associated with litigation. It brings the events in dispute to a close instead of forcing patients to relive them as part of assessments and testimonies in the run-up to trial and in court.

And mediation is also gentler than a trial. The mediator is a neutral third party who manages a process that is confidential, held in private and without prejudice. The parties are free to develop any settlement they choose, not one limited by law to monetary compensation.

In the mediated space, parties can meet face to face. The injured party can find out what happened, and the practitioner and institution can explain. Pain and trauma are acknowledged, and relationships can begin to be repaired. Settlements can also mean quicker access to resources for essential rehabilitation such as occupational or speech therapy.

Given the benefits, mediation’s slow uptake has been frustrating. It’s as though there’s a blank space between mediators and the women, men and children at the heart of the claims for alleged damages that continue to be lodged in court.

This is not surprising. Mediation has been used to settle medical disputes in the United Kingdom, the United States and Canada for years. But in South Africa, the field of medical negligence mediation is new and we have no blueprint to advance it.

Networks that can refer patients to suitable mediators and organisational processes to develop professional forums or advisory and management services have still to accrete. Communities of practice must still evolve.

So it’s not for nothing that words such as “ground-breaking” and “pioneering” have been used to describe mediation’s introduction into the health sector.

But simply training mediators is not enough to bridge the gap between mediators and communities or to give life to Motsoaledi’s vision.

Mediation is classically defined as a voluntary process. There can be no mediation unless the parties in dispute formally consent to do so and agree on a mediator. But how would anyone in the midst of a medicolegal claim know where to access mediation? Even if they felt compelled by the minister’s position to get to the mediation table, what criteria would define a suitable mediator?

These are some of the questions that have been top of my mind.

The South African Society of Obstetricians and Gynaecologists (Sasog), which predicted it would lose 100 members by the end of this year, in part because of high litigation rates, has become the first professional body to institutionalise a premediation process. In the event of a dispute, the body now requires patients and doctors to agree to attend a free premediation meeting to help them decide whether to mediate or proceed with litigation.

It’s an idea introduced by the nonprofit training organisation Mediation in Motion, which offers free and no-risk preliminary meetings with its mediators.

Now, Sasog is encouraging other medical bodies to do the same and indemnity insurers are supportive. At least one insurer,  Constantia EthiQal, offers alternative dispute resolution mechanisms as part of its products.

In Gauteng, medical mediators are themselves interrogating the premediation process and how it could be used more broadly, especially as disputes can stem from something as simple as personality clashes to catastrophic breaches in the duty of care. The result is the Gauteng Pilot Medical Mediation Project.

But some sceptics, especially specialist medical negligence and personal injury attorneys, aren’t convinced mediation is worth the effort. These professions remain hawkish on the issue of settlement agreements, arguing clients may agree to an inappropriate or prejudicial settlement in mediation when litigation could have achieved a better outcome or figure.

Mediation in Motion founder Alan Nelson says the solution could be simple: each party could have legal representation. In mediation, the parties determine the outcome, giving lawyers an essential role in supporting and advising their clients, and helping to draw up the final settlement agreement.

Many high-value medical negligence claims run on “contingency fees” or a system in which lawyers’ fees are, in part, related to the settlement figure. Any cuts to monetary compensation, whether it’s by a ruling of the Constitutional Court or by consensus reached in mediation, is likely to affect their practice.

So while mediators never advise on the terms of a settlement, the benefits of the agreements generated through medical mediation in South Africa still need to be proved.

Janine Simon-Meyer holds a master­ of science in medicine and has trained as a medical negligence and health sector mediation through the University of Cape Town

Have something to say? Tweet or Facebook us on @Bhekisisa_MG

Mediation and Arbitrationmedical insurancemedical malpractice