Look who’s (not) talking: The use of mediation in medical negligence claims in Ireland

This paper looks at why mediation is not more widely used in medical negligence claims in Ireland. It is based on research, undertaken in connection with an MA in Mediation and Conflict Intervention at Maynooth University, during which eight solicitors working in the field of medical negligence shared their experience and perspectives on the use of mediation in this area. The research finds that mediation is in use but only as part of the convoluted litigation system and the style used is focused on the legal interests of the parties rather than any emotional needs. The Irish State has introduced some measures to facilitate the use of mediation but there is no coherent strategy and low public awareness. Legislative changes to streamline the litigation system are on the way, but if the parties’ needs and interests are to be served, a more facilitative, people-centred mediation style should be adopted, supported by a coherent, government sponsored, restorative justice strategy.

Exploring the Basis for the Increasing Medical Negligence Claims in South Africa

Litigation arising from medical negligence have continued to witness an incremental trajectory in the contemporary South African medical jurisprudence. As the number of claims continue to rise, so also does the financial expense in the form of cost of litigation on the part of the litigants and damages paid by the healthcare personnel and government agencies in successful cases. Such expense, however, palls into oblivion when compared with the reputational damage attendant such negligent conducts on the parts of both the healthcare personnel and the healthcare institutions. On the positive side, however, is that the growing instances of such claims have brought to the fore the need to interrogate the reasons and seek solutions with a view to attaining a more efficient health service delivery system in the country.

To What Extent are Healthcare Professionals Immune from Liability for Professional Negligence? A Review of the Cases of Bolam and Bolitho

This paper reviewed the extent to which Bolam provided healthcare professionals with immunity from claims based on negligence in the past, and whether Bolitho was able to resolve that issue.During the early 1950s, when the NHS was in its golden era, the medical profession was still “unregulated and paternalistic” in approach. Consequently, the medical profession had enjoyed unreserved obedience from patients and was treated with great reverence by society. John Hector Bolam was a patient who sustained fractures because the defendants applied unmodified electro-convulsive therapy on him. So, his suit for negligence provided the much-needed opportunity for grounding the principles of medical negligence which was still in its early stage of development. The issue was unprecedented, and therefore the dictum of Lord President Clyde in the Scottish case of Hunter and Hanley became handy. The ruling gave doctors the latitude to set standards of care and justify their actions by simply having their peers support them. It placed the onus of proving “Wednesbury unreasonableness” on the patients in order to succeed in medical negligence litigation against a doctor. That was very difficult to prove. This attracted criticisms against Bolam that it provided excessive immunity to doctors and difficulties to the patients. Several cases had been decided in favor of the doctors and allied healthcare professionals.A similar opportunity arose in 1984 when the Bolitho rule was propounded which empowered the courts to intervene and determine if a body of medical opinion is indeed responsible, by subjecting their evidence to the logicality and risk/benefit analysis tests.Issues for consideration include, to what extent did Bolam provide immunity to healthcare professionals and, post-Bolitho, if the issues have now been resolved. To accomplish that, the author will examine the various court decisions pre-and post- Bolitho with a view to coming up with the answer(s) to the issues raised