The us vs them mentality in clinical negligence – how can we break down barriers
5th October, 2019
Expert Information

Written by Litigation Executive, Andy Tindall

Litigation, whether it be civil or criminal is inherently a battle ground. Claimant vs Defendant or Victim vs Accused. It creates inferences of Good vs Bad and Right vs Wrong, which leads to emotions and divisional barriers.

Unfortunately, but unsurprisingly, these emotions and barriers can be amplified in the context of clinical negligence litigation. A Claimant, with potentially life-changing injuries, alleging that said injuries have been caused, or can be materially contributed to, a treating clinician’s actions or failure to act. Whichever way you look at it, or whatever side of the divide you are on, the impact can be devastating for both parties.

Setting expectations early and explaining the purpose of clinical negligence

This is the key reason why it is imperative for the representatives of both sides to work together. It is for Claimant lawyers to set expectations early and clearly explain the purpose of clinical negligence litigation from the outset (i.e. one of resolution as opposed to punishment). With this attitude, Claimant’s should approach the process with a more balanced and open perspective.

It is for Defendant lawyers to identify cases whereby admissions can be made early and avoid a ‘defend at all cost’ mind-set. Not only will this keep clinician involvement to a minimum, thereby reducing the understandable stress placed upon their already pressure-strained shoulders, but it also allows easy and constructive dialogue with a clear path to resolution.

Public perceptions around clinical negligence and better patient care

The public perception of clinical negligence litigation is also crucial in improving the relationship between both sides of the divide. The National Health Service, understandably, is held in the highest regard amongst the public and any suggestion of criticism of its processes or staff can be met with heartfelt rejection. However, with this rejection comes a failure to recognise two things:

Clinical negligence litigation has helped to improve and, in some circumstances, shape hospital policies and accountability, leading to better patient care. Patient consent and the principles set out in cases such as Montgomery v Lanarkshire Health Board is a perfect example of this and has ultimately created a more transparent and cohesive relationship between doctors and patients.

At the heart of clinical negligence litigation is an injured person and their families who, without legal representation, would not be able access the required provisions to be able to live their lives as they were before the injury.

The high level of respect and appreciation of the work carried out by healthcare professionals and the assistance provided to them by their legal representatives is without question, and rightly so. However, it is important that this same level of respect is also afforded to injured parties and their representatives, particularly amongst the general public and within government.

It is therefore crucial that we continue to work together as litigators to help erode that mental divide between the two sides and by focusing patients and healthcare professionals on the real purpose of clinical negligence litigation; to support and resolve.

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