Alternative Dispute Resolution in medical negligence cases

06 November 2019

Claims for medical negligence have risen dramatically in Australia over the last 30 years. The facts and the medicine can be of varying complexity. Matters proceeding to hearing take days and usually weeks. Consequently, Australian courts have been keen to refer these matters to alternative dispute resolution to take the pressure off the demands of court lists.

In New South Wales virtually every medical negligence claim is referred to mediation, by consent or court order.

The mediation process

Matters are generally referred to mediation after the parties have exchanged their liability and damages reports. In New South Wales, mediation generally takes place within about a year or eighteen months of commencement of proceedings.

In New South Wales, parties attempt to use a small panel of mediators, most of whom are senior counsel. The chosen mediator then issues directions to prepare the matter for mediation.

In New South Wales a draft index of the mediation bundle is circulated and agreed on by the parties. It consists of the pleadings and medical reports relied upon. The plaintiff serves his or her position paper approximately one week before the mediation. The defendants serve their position papers a day or so before the mediation. The position paper contains a short outline of the case and the strengths and weaknesses of the evidence served. The plaintiff’s position paper usually contains a schedule of anticipated damages (which can be two or three times what the claim may actually be worth).

Mediations in New South Wales are generally listed for one day. Victorian mediations are generally listed for half a day.

Cases generally fall into three categories, being:

  • Indefensible;
  • Arguably defensible; or
  • Defensible.

The participants

In New South Wales and the ACT an opening session is generally conducted. The plaintiff attends with his/ her legal representatives, being at least one solicitor and one counsel, but often more. Doctors do not attend in person but are represented by a claims manager from their defence organisation/ insurer and solicitor. Hospitals tend to be represented by counsel, a solicitor and claims manager.

In the opening session the mediator explains the process which is absolutely confidential and generally urges the parties to compromise their respective positions in order to resolve the matter.

After the opening session, the parties return to their respective breakout rooms and various offers are made in an attempt to resolve the matter. If agreement is reached, the appropriate documentation is drawn up so that the court can make orders formalising the agreement between the parties.

It is not uncommon, with matters being close to resolution, for the parties requiring further time to consider their respective positions. A number of matters settle within a week or two of the mediation.

On occasion a second or third mediation is required to reach a resolution.

Queensland

In Queensland, pursuant to the pre-proceedings requirements of the Personal Injuries Proceedings Act 2002, (PIPA) the parties are required to participate in a compulsory conference before commencing Court proceedings (unless there is a good reason to dispense with this requirement).

The parties can elect to participate in a compulsory conference by way of an informal settlement conference (without a mediator) or by way of a mediation and this can occur at a time or place agreed between the parties or a party can call the conference at a reasonable time and place six months after a compliant Part 1 Notice of Claim has been provided.

Mediations are generally listed for half a day and position papers are generally not provided with the parties instead setting out their respective positions at the opening of the mediation. Usually the respondent will request that a document similar to a schedule of damages be provided prior to the parties agreeing to proceed to compulsory conference.

Western Australia

In Western Australia, the District Court Rules require that all matters progress through an ADR process, either a pre-trial conference or mediation. Traditionally, the District Court only used pre-trial conferences; however there has been an increase in requests for mediation over the past five years (more so in non-personal injuries matters).

The process

Generally, pre-trial conferences are listed around 12 to 18 months after a matter has been issued (and once the Plaintiff’s particulars of damages have been served along with evidence in support), although this depends on the complexity of the claim and the nature of the plaintiff’s injuries.

Pre-trial conferences are an informal process where the parties meet to discuss the matter and try to reach a resolution. There are Registrars available to assist to ‘mediate’ if parties reach an impasse; however Registrars have not read the pleadings, nor seen the relevant expert evidence and are not able to delve into the issues between the parties on a more than superficial level.

Pre-trial conferences are generally listed for a half day.

The participants

In Western Australia, the process is usually quite informal and there are not lengthy opening sessions. All parties are required to attend the pre-trial conference in person, however usually the plaintiff is not present for any discussion or negotiations with the defendant. Doctors do not attend in person but are represented by a claims manager from their insurer and solicitor. Hospitals tend to be represented by a solicitor and claims manager. In particularly complex matters, the parties may also be represented by Counsel.

After any opening session, the legal representatives return to their respective breakout rooms and various offers are made in an attempt to resolve the matter. If agreement is reached, the appropriate documentation is drawn up so that the court can make orders formalising the agreement between the parties.

It is not uncommon for matters to require more than one pre-trial conference, as during the first pre-trial conference the parties have the opportunity to frankly discuss any issues in the case and evidentiary gaps, and more time is then required to gather evidence before another pre-trial conference is arranged.

The outcome

Alternative dispute resolution has many obvious attractions, including:

  • Certainty of outcome;
  • Avoiding the stress of doctors and health professionals preparing for hearing, attending numerous meetings with lawyers and then giving evidence (usually years after the event);
  • Unwanted publicity from a media circus; and
  • Saving the costs of a defended hearing that can run into hundreds of thousands of dollars, which cannot be recovered from a plaintiff with no assets.

In New South Wales, approximately 80% of matters resolve at mediation or shortly afterwards. In Western Australia the resolution rate is closer to 90% from the final pre-trial conference. In Queensland very few medical negligence cases proceed to hearing after compulsory conference or mediation.

This article was written by Don Munro, Partner, Katharine Philp, Partner and Erica Dobson, Senior Associate.

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