Y, a lady who was 22 years of age, looked set for an excellent career in the armed forces. Y was told she needed, however, a minor operation to deal with what was described as a routine sports injury. No complications were foreseen or explained. No alternatives were suggested or risks discussed. It was all treated as a simple option. Except it was not.
First, there was apparently a wide range of opinion between the four experts later instructed as to whether operative intervention or conservative treatment was to be preferred. The experts apparently agreed that conservative treatment carried no particular risk - Y’s issue would either get better or it would remain the same. It would not worsen.
Second, it was also said to be agreed evidence from the experts that the operation, using regional anaesthesia, did carry some risk of complications, both negligent and non-negligent. It was accepted by the Trust that these were not explained to Y but the Trust’s experts both reportedly said that it was not necessary under Bolam to do so. The alleged failure under Montgomery cited by Y was not addressed by the Trust other than by denial.
The Trust alleged instead that even if the risks had been explained the incidence was so small and the adverse outcome that eventuated so unusual that Y would, keen as she was to progress in the forces, have accepted the risk in any event.
The operation went ahead. The anaesthetist was allegedly negligent or in the alternative simply failed to spot what was happening, and Y was left without feeling in the limb that was being treated. She was medically discharged from the forces without any compensation because, although the MOD had referred her to the Trust, the MOD said that any claim should be directed to the Trust as its supplier of healthcare.
Y directed her claim against the Trust both in common law negligence under Bolam in respect of the treatment and under Montgomery for the alleged failure to provide consenting information on risks, alternatives, benefits, and options. The claim at full value - if Y could prove a full career loss rather than 8-12 years of military service with no pension - was potentially worth £500,000. Although happily Y was once again fully in possession of the use of the limb she was not able to re-join the forces.
The Trust denied liability. It said it relied on its experts, whose evidence was not disclosed, by the date of the mediation, but merely cited in correspondence and alluded to in the pleadings.
Mediation took place with an agreed stay and pre-exchange.
At mediation, no concessions were made in the opening plenary session by determinedly robust counsel for the Trust. This was met with some freely expressed incredulity by counsel for Y. To say more about the following exchanges might risk breaching the confidence of the mediation.
Suffice to summate that, in three hours of private sessions, with robust reality testing of both sides, by a mediator experienced both in clinical negligence work and in armed forces cases, an accord was reach. No admissions were made, but a sum to be paid without prejudice was found that satisfied all concerned. Unusually too, the question of costs was also resolved within the settlement arrangement - including that of the mediation.
Afterwards, all expressed themselves delighted with the outcome which offered certainty to Y and value, and closure, to the Trust. Four hours overall were well spent. Whilst it is not the mediator’s role to analyse the outcome at the time, for the purposes of this case summary, and drawing on his experience in the fields noted above, it seems to the mediator that both parties took very astute and commercial decisions, were well advised and represented, and used the process of mediation to reach a strong risk-averse outcome for all.