Case Study: Claim Arising From Complicated Surgical Procedure

Summary
 
This case study demonstrates the financial and human benefits for the receiving party and the paying party that can arise from mediation.

The Parties

The claimant was a teenage boy, and the claim was brought by his father acting on his behalf.

All of the lawyers were specialists. Counsel, an experienced junior and a QC, were both used to acting for either side in clinical negligence claims and to fighting clinical negligence cases at trial. I did not know if they had ever used mediation before. The solicitors were experienced and I had mediated with each of them before.

I think the defendants instigated the mediation.

Circumstances of the Case

The claimant, then a young child, underwent a complicated operation. Things went wrong. The outcome was catastrophic. The defendants had arguments on breach and maintained that if they were unsuccessful on these the claimant had very considerable difficulties on causation. The mediation position papers indicated that each party believed that it had a strong case but acknowledged that the litigation risk was significant.

The stage of the Litigation

The case was pre-litigation.

Following the operation there had been an SUI investigation. This was reported to the parents. They made extensive written comments which were met with a written response.

A formal letter of claim was met with an offer of mediation from the Trust which responded to the claim by a mediation position statement.

Attendees at the mediation

In addition to the claimant’s parents, solicitors and counsel there were a representative from the hospital, a senior decision-maker and the two treating clinicians who had been involved in the operation in question. One of these had had responsibility for the care of the claimant throughout. It was notable that, notwithstanding the circumstances of the case and the entirely understandable emotional reaction of the family to the outcome of the operation, he had continued to treat the claimant and had maintained a professional relationship with the claimant and his family. (The nature and strength of this relationship was such that, unusually and without objection from any quarter, there were private conversations between the clinician and the claimant’s father during the mediation.)

Start of the Mediation

Both parties readily agreed to an initial joint open meeting for introductions and brief opening statements.

The barrister for the claimant made it clear that her considered view was that she would speak for the claimant’s father during the opening and he would not speak. (I outlined the benefits of the father speaking. Counsel noted and accepted my views but her position remained the same.)

On the basis of the pre mediation exchange of correspondence and position papers, the barrister for the claimant suggested that, having “spoken” last through her position statement, it would be appropriate for the barrister for the defendants to speak first during the joint open meeting. This he readily agreed to. He also readily confirmed that there was authority to settle, this basic point being a matter which the barrister for the claimant had requested that I check, so that it could be ascertained that the defendants were not attending for a mere fact finding exercise.

The Joint Open Meeting

The barrister for the defendants opened (as agreed). He outlined the circumstances in relation to breach of duty and causation. He then invited the two clinicians to speak.

The clinicians spoke in turn. Each of them was emotional, to the point of being tearful, and expressed heartfelt sorrow for what had happened. One point they made was that, following this experience, they had considered using a different procedure to the one adopted in the operation, and indeed had tried this subsequently. Their experience, however, was that this simply was not as effective.

The barrister for the claimant then spoke, addressing, primarily, litigation risk. Clearly there were substantial legal differences between the barristers and they discussed, responded and counter- responded in a manner that was calm and dignified, and in keeping with the discussion being witnessed by the family and with what had been said before by the clinicians.

I then made some remarks concluding this session in which I thanked everyone who had spoken adding that, as the independent mediator, this was a solid and most satisfactory start to a mediation. I have been mediating for many years, but I find it hard to recall a more appropriate and fitting opening session.

Negotiations

The “mood music” at the opening session made it clear that both parties were intent on seeking resolution if that could be achieved. In seeking to manage expectations I made it clear to both parties that I was accustomed to such sentiments being expressed only to find that the opening offers were a very long way apart.

Turning to the potential value of the claim, the claimant’s circumstances, disability and prognosis were known about in broad terms, but there had been little forensic exploration of the value of the claim and there was no expert evidence on the subject. (It is not usual for lawyers to discuss a settlement by way of damages when there is no expert evidence.)

In discussion with both parties I mentioned that in my experience, in circumstances such as these, the defendants were usually intent on final settlement for a financial sum whereas claimants were usually insistent that, pending examination of the claim’s value, any settlement would have to be on a percentage basis. I added that a cash settlement was usually the outcome of such a discussion at a mediation.

Negotiations commenced with what I would describe as a ranging offer from the defendants followed by a ranging response. By this mean I mean the defendant made a respectable start, which I fully expected would be significantly improved upon, and the claimant made a cautiously high response, which I also expected to see movement from.

There was then a series of offers, and in fact there were a greater number than I had been anticipating. The early offers were accompanied by messages, information and questions. During the later stage, as is normal, there were figures only.

There was discussion about percentages, litigation risk and the alternative approaches of “top down” ( full liability valuation less discount) and a “bottom up” (the needs of the family).

The litigation risk discussions concentrated on the fact that both parties could lose on liability/causation and in the circumstances of this case there is a known formula for settlement. This is a lump sum sufficiently large that will be life changing for the claimant, that will satisfy a great deal of his needs, and would contrast very significantly with the zero sum that the claimant would receive if he lost the case. Such an approach is sometimes acceptable even though the lump sum might represent a considerable discount from a claimant valuation based on full liability value minus the claimant’s barrister’s view of a proper reduction for litigation risk.

To be added into the mix was the fact that the claimant was a child and therefore an approval opinion would have to be put before the court. To one suggestion that a claimant’s barrister could write an opinion for almost any figure there was the response that barrister had to be professionally satisfied that such an opinion would not be a professional embarrassment when presented to the judge.

Settlement and Closure

Settlement was duly reached.

The claimant room was of the view that the presence of the two clinicians, throughout the mediation, had been most significant and the family requested a closing meeting so that they could thank the defendants and the clinicians. The closure meeting took place, and this was as emotional for the family and the clinicians as the opening meeting had been.

A settlement agreement was signed, subject to court approval.

For me, this was an excellent day for mediation.

For the family it was a difficult day, although much less difficult than going to court. I felt that the discussions were dignified throughout.

For the defendants it was a pragmatic solution. In my experience the defendant camp usually represents a range of views, and each of those involved no doubt have opinions on whether the amount agreed was correct, generous or represented a saving on the likely outcome at court. What is beyond doubt is that this settlement, as well as giving the claimant’s family some financial security, certainty and a termination of the litigation process, also provided the defendants with certainty, elimination of the risk of losing and a very considerable saving on costs.