CYIL vol. 10 (2019)

TOMÁŠ HOLČAPEK CYIL 10 ȍ2019Ȏ and compassion. They would like to see that preventive measures aiming at prevention of the same error be adopted. They appreciate achieving psychological closure of the case. 9 But similar considerations apply to health professionals. Litigation may endanger their reputation and threaten them with liability, but it may also be characterised as an extreme form of criticism, which can directly influence the professional’s emotional state 10 , and especially in protracted cases, lead to anger and depression. This means that traditional litigation may result in both the patient and the physician’s feeling that his or her actions, motivations and positions were misunderstood by the other party and that his or her professional skills on the part of the professional and personal suffering on the part of the patient and their family were not paid proper respect. Alternative dispute resolution methods may significantly alleviate this psychological burden and lead to catharsis with less distress. And if the parties are worried that the result of application of ADR will leave them legally vulnerable, there are often available steps allowing to transform the informal settlement into a binding and enforceable agreement, e.g. by having the settlement agreement confirmed by a court. 11 The apparent advantages of alternative dispute resolution may only be utilised to their full potential if any errors are disclosed to the patient early and if they are communicated with empathy and sincere effort to keep the patient’s trust. Attempts to resolve a dispute between a patient and a health care provider by mediation will usually be much more difficult if they come after a long period of cover-ups and denial. We may therefore assert that early admission of an error, and an apology, may support efficient application of ADR methods in medical malpractice. Notwithstanding all these considerations, in actual practice health care providers and their employees often act in the opposite manner and remain silent, or deny any error outright. Some of the objective concerns that may lead them to take this approach have been mentioned above. They may feel that anything which could be interpreted as an admission of responsibility will only cause them additional problems and make their legal position more precarious. It obviously depends on the particular country’s legal system, but it is conceivable that an (early) apology will be construed as admission of responsibility, guilt or liability and used by the patient or their family in a lawsuit for monetary compensation. Without such admission it may be much more difficult for the claimant to establish the necessary elements of liability with sufficient probability or certainty (depending on the applicable standard of proof ). 12 Another source of this strategy may come from the fact that education and training of health care professionals may not focus enough on their learning how to handle, let alone 9 KOTULA, Jan, DOLEŽAL, Tomáš. Mediace a další vybrané formy mimosoudního řešení sporů ve zdravotnictví [ Mediation and Other Selected Methods of Alternative Resolution of Disputes in Health Care ] . (Iuridicum Olomoucense, Olomouc 2015), pp. 13, 51-52. 10 McMULLEN, Andrew. Mediation and Medical Malpractice Disputes: Potential Obstacles in the Traditional Lawyer’s Perspective. Journal of Dispute Resolution . (Vol. 1990, No. 2), pp. 377-378. For an illustrative example in which the parties were able to overcome the initially very negative emotional positions and come to a satisfactory closure cf. ibid., pp. 375-376. 11 For Czech legal perspective cf. SALAČ, Josef. Smírčí řízení [ Conciliation Proceedings ]. In: WINTEROVÁ, Alena, MACKOVÁ, Alena, et al. Civilní právo procesní. Díl první: řízení nalézací [ Law of Civil Procedure. Volume One: Trial Proceedings ] . (Leges, Praha 2018), pp. 319-322. 12 For Czech legal perspective cf. HOLČAPEK, Tomáš. Občanskoprávní odpovědnost v medicíně a její uplatňování u českých soudů [ Civil Liability in Medicine and its Application by Czech Courts ]. Právní rozhledy . (2016, Vol. 24, No. 9), pp. 10-16.

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