South African heath care disputes resulting in litigation are constantly increasing, with medical malpractices on the rise. Statistics confirmed by the Medical Protection Society has shown that claims against their members have increased to 550% in comparison to ten years ago.
In South Africa, the litigation process in relation to health care disputes can take several years to complete. This adversely affects both the patients, who have to wait for compensation to be paid out, and also the innocent medical practitioners, who endure long periods of time before their names can be cleared of an alleged misconduct.
Mediation and arbitration, as forms of Alternative Dispute Resolution mechanisms, have been identified as effective and safe means to alleviate the current challenges faced in medical heath care legal disputes. Mediation can be described as a process by which a neutral third party, the mediator, manages a process designed to resolve disputes amicably, that is confidential, held in private and without prejudice. This process can ensure that innocent medical practitioners are not labelled negatively by the public without good cause shown. Litigation is usually public and all documents filed at court are immediately open for the public and media to access. There is a massive risk that the public might interpret the contents of court files incorrectly, which could cause adverse reputational harm on innocent medical practitioners. Should arbitration proceedings be agreed by the parties to follow mediation (if the mediation process is unsuccessful), the parties may also agree that such arbitration proceedings are held in private.
The question, however, is whether mediation and arbitration is bespoke enough for health care disputes. Considering the complex and technical nature of health care disputes, imminent power imbalances, financial risk and the adversarial nature of litigation, mediation and arbitration offers a much needed and productive alternative method in addressing and alleviating the challenges facing medical practitioners and patients in health care disputes. Unlike litigation, in mediation, parties can agree to appoint medical legal experts to conduct the mediation or to chair the arbitration if the parties are able to agree to submit disputes to mediation and arbitration. Such experts have a greater depth of knowledge into the technical aspects of medical disputes than persons who have little to no experience in the medical arena. This process is, therefore, arguably more bespoke than litigation if set up and administered correctly.
Mediation proceedings are capable of being implemented and initiated where patients and medical practitioners agree in advance to submit any disputes, which arise as a result of medical treatment, to mediation. The best way of ensuring that mediation is the first port of call when disputes arise, is to insert appropriates dispute resolution mechanisms in medical practitioners’ standard terms of engagement, which patients sign and agree to in advance and before any medical treatment is administered. This will bind patients and medical practitioners to following the mediation process prior to approaching court. It can also be agreed in advance that disputes be referred to a private arbitration (for final relief) if mediation fails, which completely takes court proceedings out of the equation.
The advantages of mediation and arbitration outweigh the advantages offered in litigation. Mediation and arbitration proceedings are for example, almost always, a quicker process to completion than litigation proceedings. This has always been the traditional upshot of mediation and arbitration, as against litigation. This means that mediation and arbitration proceedings are likely to be cheaper than litigation in the long run, if planned correctly. It also means that settlement agreements in medical disputes are more likely to be achieved quicker.
Mediation, in particular, has been used to settle medical disputes in the United Kingdom, the United States and Canada for many years. In South Africa, however, medical negligence mediation is fairly new, leaving new ground to be broken and new precedents to be set, for the sake of affording efficient dispute resolution mechanisms in the medical field in South Africa.
Mediation would also benefit all South African public and private hospitals to manage medical malpractice claims efficiently, cheaply and privately. In the case of public hospitals, mediation and arbitration would have a knock-on effect, in that it would save taxpayers millions of Rands, as opposed to following the traditional litigation route.
(Supervised by Lester Timothy)
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)