With the cost of medical indemnity soaring as the number of complaints rises, Gareth Gillespie looks at the value of mediation
With the cost of medical professional indemnity skyrocketing in recent years an alternative, more cost-effective solution is now a necessity rather than a preference.
Mediation is now being talked about again as a serious option in Hong Kkong after research showed that indemnity subscriptions have tripled for public doctors in the last ten years; for private clinicians it is even higher, with increases ranging from five to thirty times previous amounts.
In the high-risk categories, subscription costs are in significant excess of the monthly salary of an HA consultant or government director. Legal costs have risen alongside the increase in the number of complaints brought before the Medical Council – and, although these have risen steadily from 190 in 1997 to 311 in 2004, they then sharply increased to 472 in 2007.
Mediation offers an unbiased and impartial “middle man” who is dedicated to bringing two disputing parties into an agreement. There is no enforced outcome and the mediator does not impose their views on either party; it is a setup designed to smooth out conflict and bring about a sense of harmony.
It was an idea widely mooted in Hong Kong in 2004, with the publication of the Hong Civil Justice Reform Report. However, most of the medical profession seem to remain unaware, despite the fact that the report recommended courts provide litigants with more information and support for the use of voluntary mediation. Calls for widespread use of mediation in medical disputes have been repeatedly made by the Secretary for Justice and the Chief Justice.
A few years ago, an agreement MPS made with the HKMA to support and fund mediation (run by the HKkMA) led to a low take-up rate among medical practitioners, probably due to the fact that medical disputes often involve complex issues that needed expert opinions and multiple defendants, and which involved expensive treatments and protracted complications.
In Singapore, the Singapore Mediation Centre has been assisting with medical negligence cases since 1998. It successfully mediated in nine cases during its first four years. Then, in January 2007, a protocol for dispute resolution was introduced by the Singapore Subordinate Courts, which was designed to keep clinical negligence claims outside the courts wherever possible. MPS has also been in discussion with the SMA to offer mediation as an option for settling disputes.
The procedure works by giving potential claimants the opportunity to discuss their cases with hospitals, or individuals within healthcare, without having to file a writ. A code of strict confidence surrounds all communications that take place in the meetings.
Luckily, in Hong Kong there is already some support for mediation, with a Patient Complaints Mediation Committee (PCMC) in existence for both the Hong Kong Medical and Dental Associations. MPS also supports and funds this. One successful mediation took place in January 2006, when a medical case ended after four hours with a modest financial settlement.
More recently in Singapore – in May this year – the first conference of the Asian Mediation Association was held. Law minister K Shanmugam attended and called for the development of research, studies and training to further expand the field of mediation.