Opinion: restorative justice can lead to more positive outcomes for all who find themselves involved in medical negligence cases
By Adedamola Adeniran, Maynooth University and Mary Adeyemo, University of Oxford
In most countries, litigation is the go-to system adopted for seeking compensation for those who have suffered from the acts and omissions of medical practitioners. But the traditional civil adversarial system has failed to meet the needs of those who have suffered from medical negligence. This system is often crippled with bureaucracy and delayed justice systems for those involved, often leading to emotional harm and sometimes mental distress.
Litigation continues to be the major means by which medical negligence disputes are resolved in Ireland. While the dominant policy agenda focuses on the direct financial cost of litigation, studies have suggested that the need for reform extends beyond financial and temporal concerns.
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From RTÉ Radio 1's Drivetime in 2018, medical negligence specialist with Augustus Cullen Law Jamie Hart on if clinical negligence claims can be resolved without going to court
Studies have suggested that the impact can manifest in a variety of ways, including pain, anger, disappointment and anxiety. The fact that a plaintiff is successful in a claim does not necessarily mean that they are satisfied with the outcome because the process of litigation alone can have a major impact on their psychological and emotional wellbeing. The civil system is also often unable to address the desire for an apology by victims of medical negligence.
While it is believed that litigation may be traumatic for plaintiffs, it often causes emotional and psychological harm to medical practitioners because the initial notification of a claim can be quite stressful. Research in the US showed that 97% of doctors surveyed indicated some physical or emotional reaction as a response to litigation, with the most frequently reported feelings being fear, guilt, self-doubt and shame.
The adversarial system is generally experienced as an assault on a physician's competence and integrity. It can damage medical practitioners' perception of themselves and inner security. Doctors feel they will decide to settle or not settle based on criteria that do not really include how much the doctor feels about the whole thing.
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From RTÉ Radio 1's Morning Ireland in 2017, Rodger Murray from Callan Tansey Solicitors on how doctors can deal with medical mistakes
At the same time, the length of litigation for the plaintiff is typically lengthy in Ireland. Delays usually occur in an attempt to reach a negotiated settlement, and their impact vary depending on the stakes involved in the case. They are usually devastating: if a judgment for damages is needed for ongoing care, re-traumatisation will increase the risk of mental health instability and psychological damage. Plaintiffs have to relive the event which caused the damage or injury, while they engage with proceedings, pleadings, expert evaluations and examination by medical experts.
Likewise, the traditional adversarial process can also cause problems for medical practitioners. Emotional wounds are liable to be kept open by the litigation process, which potentially can delay the ability to move on from the event. The longer the case remains unsolved, the longer medical practitioners involved have to deal with stress.
Research over the past decade has shown awareness about unsatisfaction with the current system. The High Court Working Group on medical negligence and periodic payment orders have made recommendations in three of their reports in relation to pre-action protocols and case management, with a view to improving the financial and temporal burdens associated with medical negligence disputes. In addition, the Law Reform Commission has also recommended the introduction of mediation in medical negligence disputes.
Restorative justice can prevent the re-traumatisation that victims experience through the adversarial process
The Legal Services Regulation Act, 2015 provides that such protocols must be completed before litigation can be pursued, and case management is to be used in instances where medical negligence disputes proceed to litigation. The Law Reform Commission's recommendation of mediation encompassed in the Mediation Act 2017 also places obligations on legal practitioners to inform clients of the potential of mediation to resolve disputes prior to issuing proceedings.
We believe that restorative justice should take the centrestage in medical negligence cases in Ireland in the form of mediation in accordance with the Mediation Act 2017. This is a voluntary process through which patients, medical practitioners and others affected by the harm caused are enabled to participate actively in the justice process. Restorative justice offers both victims and medical practitioners and their family members an opportunity to talk about their experience and to make good the harm done.
Restorative justice can satisfy victims of medical negligence through fear reduction, anger, and other post-traumatic stress symptoms. It can also prevent the re-traumatisation that victims experience through the adversarial process. For medical practitioners, restorative justice offers a chance to apologise and to try and make amends. It offers an opportunity to heal from the event and to make compensation to the plaintiff.
Adedamola Adeniran is a PhD candidate at Maynooth University and was a visiting lecturer in criminology at the National Institute of Police Studies in Abuja, Nigeria. Mary Adeyemo is a PhD candidate at the University of Oxford.
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
