Amy Greaves, a principal associate in Shoosmiths medical negligence team, recently settled a case concerning the treatment our client’s wife had received from her GP that should have been resolved far earlier using this approach as the defendant’s expert evidence fell apart at trial.
Background
It was our client’s case that his wife was not appropriately assessed or referred to hospital when she should have been. Due to this failure to refer, she suffered a cardiac arrest and sadly died - had she been admitted to hospital she would have survived. She was 34 years old at the time of her death and left a two-year-old son, in addition to her husband, our client.
The case was denied by the defendants throughout. Acting for the husband (the claimant) we made an offer of settlement following service of court proceedings and again prior to exchange of expert evidence. The defendants did not formally respond to either offer. Shoosmiths therefore invited the defendants to a Round Table Meeting (RTM).
The purpose of an RTM
An RTM is intended to be a genuine attempt to resolve matters by discussing all aspects of a claim to avoid a costly trial. The RTM was due to take place around six months prior to the listed trial date. Three days before the RTM the defendants’ solicitors advised that they did not have any instructions to make offers to settle, but instead wanted to discuss the experts that would be required at trial. The RTM was cancelled as we considered it more proportionate to discuss those issues through correspondence or phone calls rather than incur the significant expense of legal teams travelling across the country.
Mediation proposed
Around two months later the defendants invited the claimant to mediation. We indicated that the cost of a mediation could only be justified if the both parties genuinely wanted to resolve the claim. The defendants had not set out the experts they considered were needed to attend the trial and we maintained this could still best be done through correspondence.
The defendants then suggested a Round Table Meeting, implying that instructions to try and resolve the claim had been given. In fact, when the defendants’ legal team attended the RTM, they said that their instructions had not changed and for them the purpose of the RTM was merely to agree quantum (the value of the claim) subject to liability. This issue, which might have been more appropriately resolved through correspondence as suggested – was settled in around 30 minutes.
The case goes to trial
With the somewhat pointless mediation and RTM concluded, the matter was listed for trial in April 2020 (subsequently delayed to February 2021 due to the Covid-19 pandemic). Prior to the trial, Shoosmiths again made a revised offer to settle, to which the defendants did not respond. The trial commenced on 22 February 2021.
Undisclosed witness discrepancies come to light
During the course of the witness evidence at trial it became apparent that there was an error in the medical records regarding the dose of antibiotic given. This was something the defendants were aware of but was not known by either the claimant or the defendant’s GP experts. This revelation (which should have been disclosed in the spirit of an RTM) meant that the defendant had to accept that there was a breach of duty. The defendants subsequently made an offer to settle on the fourth day of trial in February 2021. We advised the claimant to accept, since the offer was not much less than the offer we originally made and in fact was more than that made in December 2020.
Conclusion: an RTM must be proposed and conducted in good faith
Following approval of the settlement, Amy Greaves, said:
“The civil procedure rules and court directions encourage a ‘cards on the table’ approach at an RTM and had the other side taken this on board it’s possible the discrepancy in the medical records would have been identified earlier. Turning up to such a meeting without a willingness to discuss liability issues or the risks/benefits of proceeding with the case is not in the spirit of the rules and merely prolongs a claim much longer than is necessary. Our client in this case had lost his wife and mother of his child and was keen on engaging in settlement discussions to resolve the matter without going through the additional stress of attending a trial.”
Amy concludes:
“Mediation or an RTM can only be justifiable and effective if both parties have an intention to fully and meaningfully engage. If there is no intention to do so, then this should be made clear at the outset. Proper consideration should be given to the value of the claim and the cost of a mediation or RTM and the consequences that holding an unnecessary meeting will have in terms of both the cost of the litigation and, perhaps more importantly, the emotional trauma this will cause to an already distressed claimant.”
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
