NHS Resolution has reported settlement of a record number of claims through alternative means such as mediation. Its Annual Report and Accounts 2018-19 reveal 397 mediations in the year, a 110% increase on 2017-18.  Furthermore, the rate of mediation in 2018-19 was six times greater than its 62 clinical negligence trials. NHS Resolution’s aim is for mediation to no longer be seen as a novel means of resolving a clinical negligence claim, given the benefits it can deliver beyond compensation, as evidenced by its research into why people pursue claims.  The flexibility of mediation as a means of claims resolution is unique. It affords the healthcare organisation an opportunity for explanations and apologies to be given face to face and to reassure Claimants what steps have been taken to prevent recurrence.

We may also see more use of Early Neutral Evaluation (‘ENE’) in some medical malpractice claims. The neutral arbitrator, possibly a retired judge or a QC, hears each party's submissions and then states his or her view on the likely outcome at trial. That view is without prejudice and has no binding effect.

Medical Malpractice Forward View 2020

This article is part of Capsticks’ Medical Malpractice Forward View 2020. Read the other articles featured in this publication below:

• Spotlight on seven key decisions in 2020 affecting healthcare providers and insurers
• Paterson Inquiry report due in early 2020
• The new Clinical Trials Regulation – implementation date likely to be delayed
• Further developments in telemedicine, AI and robotics will bring opportunities, challenges and risk for businesses in the MedTech sector
• Where next on the appropriate approach to future accommodation claims?
• Fixed Recoverable Costs should contribute to controlling the rising costs of clinical negligence claims, but there is further work to be done
• Challenges to dishonest claims against health providers will continue to rise.

Get in touch

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Anna Walsh, or Philip Hatherall.