Resolution After Medical Injuries: Case Studies of Communication-and-Resolution-Programs Demonstrate Their Promise as an Alternative to Clinical Negligence

Abstract

The agony of medical negligence for all involved is well documented. Health practitioners involved in harm events are described in the literature as “second victims”. Injured patients report that clinical negligence litigation is traumatic, slow, expensive, and does not meet their needs. Clinical negligence lawyers have complained that healthcare injury cases are so complex and expensive that many firms do not accept these cases. This article uses a qualitative case study research design to analyse two cases from the United States of America (US) to explore the promise of an alternative resolution process: the communication-and-resolution program (CRP). CRPs involve the hospital disclosing the healthcare injury, investigating and explaining what happened, apologising and, sometimes, offering compensation to injured patients and families. In the US, CRPs have not replaced tort law. The two case studies analysed in this article offer a rare insight into the accounts of those who have experienced clinical negligence and an alternative non-litigation approach. The case study approach delves into the detail, providing an in-depth glimpse into the complexity of healthcare injuries in their real-life context. The case studies provide valuable lessons for reshaping resolution processes to better meet injured patients’ needs.

1. Introduction

Numerous commentators have questioned whether tort law fulfils its core purposes of compensation, deterrence, and safety (Abel 1990; Waldron 1985). In particular, the “ire and angst” sparked by clinical negligence has been highlighted (Studdert et al. 2004). The “misery of medical malpractice litigation” for patients, their families, and health providers has been empirically documented for decades (Dyer 2021; Kessler et al. 2006; Weiler et al. 1993; Moore et al. 2017). The multiple miseries have been outlined elsewhere (Schulz 2022). To summarise, the key problems are that clinical negligence litigation is expensive, stressful, slow, traumatic, unfair, unpredictable and, overall, fails to meet the needs of injured patients, their families, and health providers (who are often referred to as the “second victims” (Wu 2000)). Medical negligence is poorly aligned with values in healthcare such as quality, safety, patient voice and patient-centred care; instead, it fosters a punitive culture of “defensive medicine” (Eftekhari et al. 2023). Medical negligence lawyers have complained that clinical injury cases are so complex and expensive that many firms do not take them on (Moore et al. 2017). The complexity of legal liability and risk when artificial intelligence in healthcare contributes to patient injuries is another reason why it is vital to give serious consideration to jettisoning medical negligence and replacing it with an alternative resolution approach (Holm et al. 2021).

This article uses two empirical case studies from the United States of America (US) to explore the promise of an alternative: the communication-and-resolution program (CRP). CRPs involve the hospital disclosing the medical injury, investigating and explaining what happened, apologising and, sometimes, offering compensation to injured patients and families. The purpose of this article is not to provide more evidence to demonstrate the multiple failures of clinical negligence to resolve patient safety incidents. Its premise is that, because the shortcomings of clinical negligence have been demonstrated, legal responses to harm in healthcare should eliminate tortious liability and adopt alternatives such as no-fault or CRPs. To underscore this message, the article will outline the patients’ perceptions and experiences of the miseries of medical negligence. The focus, however, will be on using the cases to explore the benefits and promise of CRPs, and shedding light on how this approach can be improved to better meet the needs of patients and practitioners.

Policymakers and health providers became keenly interested in alternative systems for resolving clinical injuries because of the well-known problems with clinical negligence litigation (Mello et al. 2011). In the US, CRPs have not replaced tort law. They are an alternative to medical negligence litigation. Early adopters of CRPs, such as the University of Michigan Health System (which implemented their CRP in 2001) reported numerous benefits of CRPs, such as decreased costs, improved patient safety and quality, and enhanced communication between patients and healthcare providers (Mello et al. 2014).

CRPs have been described, and normatively and empirically analysed, in detail elsewhere (Moore et al. 2017; Mello et al. 2014). This article will use two case studies to illustrate the operation of CRPs to support the argument that they are a preferable approach for the resolution of harm in healthcare. The core purpose and processes of CRPs can be captured by highlighting the main values that underpin CRPs: patient safety, patient needs and patient-centred care (Schulz 2022, p. 230). CRPs operate within healthcare organisations and alongside medical negligence.

When a medical injury occurs, the treating clinicians offer an initial disclosure to the patient and/or family. The CRP process is then activated. In addition to the patient and the family, the people involved in the CRP process include the following: clinicians, quality advisors, and patient relations teams. Risk management and claims teams undertake a quality root cause analysis. Thereafter, a detailed investigation is conducted, which involves a patient liaison and an external expert review. The final stage in the process is resolution, which involves an explanation of what happened, an apology and, sometimes, an offer of compensation. CRPs, therefore, offer ‘open disclosure’, and other remedies such as compensation. The process typically takes several months. Although there are few CRPs, the US Agency for Healthcare Research and Quality is scaling up the model (Agency for Healthcare Research and Quality 2015a, 2015b).

The two case studies discussed in this article are drawn from earlier studies conducted by the author and colleagues (Moore et al. 2017, p. 1595; Schulz Moore et al. 2021b, 2019; Moore and Mello 2017). While those articles analysed larger datasets, this article delves in more depth into two of those accounts, using some data which have not yet been published. These case studies offer a rare insight into the accounts of those who have experienced medical negligence and an alternative non-litigation approach. Because injured patients in the US can choose whether to resolve errors through medical negligence litigation or a CRP, these two cases also provide empirical insight into why some patients prefer non-litigation alternatives. The case studies provide valuable lessons for reshaping resolution processes to better meet injured patients’ needs.

2. Methods

2.1. Design

This project uses a qualitative case study design to analyse the immense complexity and impact of medical injuries, the miseries of medical negligence litigation, and the operation of CRPs. The case studies focus on injured patients’ experiences. Research design literature highlights that the case study approach is “useful to employ when there is a need to obtain an in-depth appreciation of an issue, event or phenomenon of interest, in its natural, real-life context” (Crowe et al. 2011). This article uses the case study to delve into the benefits of CRPs as an alternative to medical negligence and the recommendations for improving medical injury resolution processes for patients. Prior research about these issues has drawn from hypothetical scenarios, systematic reviews, or larger datasets of patients’ experiences (Moore and Mello 2017, p. 788; McVeety et al. 2014), necessitating the identification of patterns and themes across data. Case studies are beneficial because they describe the specific details of a patient’s case, from which broader lessons may be extrapolated.

Case studies are often described as using a “naturalistic” research design because they explore the phenomenon in depth and in its natural context (Huang et al. 2015). They generate a “multi-faceted understanding of a complex issue in its real-life context” (Crowe et al. 2011, p. 100). Case studies are an established research design in fields such as policy, law, social sciences, and business, but were only recently adopted by health researchers because of the primacy of experimental designs in healthcare. However, health researchers have recognised that case studies are valuable in some scenarios, such as the study of rare diseases, topics where recruitment is difficult, and those where details are vital for understanding (Crowe et al. 2011). The recognised challenges of recruiting injured patients for research (Schulz Moore et al. 2019, p. 948), and the importance of delving into the details of their experiences, make a case study design appropriate for the study of patients’ experiences of medical negligence and its alternatives.

Case studies can describe, explain and explore the phenomena under study (Huang et al. 2015, p. 21). Case studies do not test a hypothesis. Rather, the approach gathers information about “‘how’, ‘what’ and ‘why’ questions, such as how the intervention is being implemented and received on the ground… (and) what gaps exist in its delivery” (Crowe et al. 2011). These questions are important to the phenomenon (resolution of medical injuries) studied for the current project.

2.2. Data Sources

In this article, empirical data are used from patients from the US who experienced medical injuries and the subsequent resolution processes. These data were sourced from two prior studies. In one study, Mello, Bismark and I researched the experiences of patients, families, and health providers who used non-litigious approaches to resolution after medical injuries to understand how providers’ responses facilitated resolution (Moore et al. 2017, p. 1595). In another study, Mello, Bismark, Jenkinson and I worked with injured patients to co-design a questionnaire, which health providers can use to assess how well they met the needs of injured patients and families (Schulz Moore et al. 2021b, p. 376). The research designs of these studies have been outlined in detail elsewhere (Moore et al. 2017, p. 1595; Schulz Moore et al. 2021b, p. 376). The results of these studies were also published. However, the designs and methodologies of these studies, and the journals’ requirements, meant that the data published synthesised all participants’ stories and experiences.

This article is the first time that detailed accounts of two participants’ experiences will be provided. Dissemination of longer versions of patients’ experiences is important for many patients who report that they want their stories heard and used in patient safety efforts (McVeety et al. 2014, p. 315; Iedema et al. 2008; Paterson 2012). This reported desire is consistent with the literature, which emphasises that injured patients want patient safety learning and opportunities to be heard (Moore et al. 2017, p. 1595; McVeety et al. 2014, p. 315). According to the two patients whose stories are recounted in this article, detailing their stories is important because they “want lessons taken from what happened to [them].”

2.3. Data Selection and Collection

In health research, Stake’s approach to case studies is frequently cited (Stake 1995). Following Stake’s categorisation of case studies (intrinsic, instrumental or collective), this project adopted an instrumental design (Stake 1995). The instrumental case study design involves researchers selecting a “typical” case (Stake 1995), which may be studied as an exemplar of the general phenomenon to enable understanding of the issues more generally. Given that this project is concerned not only with the specific experiences of the people in the case studies, but also with general lessons, an instrumental case study design is appropriate. As noted above, the two case studies selected were collected from our earlier empirical studies of injured patients who had experienced CRPs. Those studies involved interviews with the injured patients, their families, health practitioners, and others involved in the CRP process.

2.4. Data Analysis

Consistent with the data analysis used in our prior studies, this project used thematic analysis to investigate the two case studies. Thematic analysis enables researchers to explore meanings, patterns and themes in a case, with the goal of developing a deeper understanding of the phenomenon (Curry and Nunez-Smith 2015; Braun and Clarke 2006). Key themes were drawn from the three topics of interest: (1) the patients’ experiences of the miseries of medical negligence; (2) their perspectives on the benefits of CRPs; (3) their insights about improving medical resolution processes.

3. Findings

3.1. Case 11

3.1.1. Adverse Events

A 14-year-old (Aviva) was exposed to an unknown allergen and experienced anaphylaxis. Her mother Miriam (a practising physician) gave Aviva the EpiPen, called an ambulance, and accompanied her to a nearby hospital. The paediatric department was full, so Aviva was placed with the adult patients. The treating team was assigned and comprised of an attending physician, a resident, and two nurses (nurse 1 and nurse 2). Nurse 1 ordered 0.3 mg of epinephrine (adrenaline) but 3 mgs was given to Aviva. The standard paediatric epinephrine dose is 1.25 mg. Miriam recalled that:

“Your nurse returned with the epi, but as she went to inject it into your IV line, I thought, ‘Something looks wrong. There’s too much in that syringe’. I had a sudden impulse to knock the syringe out of her hand before she gave it, and simultaneous to that, I thought that if I touched her, they would kick me out of the ER, but before I could say anything, she had pushed it in.”

Nurse 1 injected the dose directly into Aviva’s IV line, instead of intramuscularly. Aviva turned white and her eyes rolled back. Miriam yelled Aviva’s name and shook her, which elicited no response. Miriam then yelled for help. Miriam also observed the heart monitor, which showed that Aviva’s heart rate had increased to the 300s. Aviva went into ventricular tachycardia. The health practitioners rushed in to address the code. They applied the paddles but did not use them because Aviva coughed and vomited, prompting the nurse at the heart monitor on the crash cart to yell “wait!” Aviva went into sinus rhythm with her coughing. After a few minutes, she regained consciousness and asked what had happened. When asked how she felt, Aviva replied: “Like I just ran a race.” A chest X-ray was conducted. The health practitioners were still not sure what had happened and were also not aware of the overdose.

A couple of minutes later, Aviva became short of breath and began coughing. After a few more minutes, Aviva was coughing up pink frothy sputum. There were four residents analysing Aviva’s X-ray. Miriam yelled at them about three times: “Guys, she’s producing pink frothy sputum and is short of breath…that’s CHF [congestive heart failure]!” Aviva’s shortness of breath worsened and she whispered to her mother, “I can’t breathe.” The clinicians were preparing to intubate Aviva, but they hesitated. Miriam yelled at the clinicians: “Why aren’t you intubating her?” One of them responded: “Her pressure is too low for the intubation meds.” Miriam yelled: “Do an awake intubation!”

Finally, Aviva’s blood pressure was appropriate for an intubation so they put Aviva to sleep and positioned the bed for an intubation. When they boosted the bed into position, thick foam gushed out of Aviva’s nose and mouth, indicating pulmonary edema. Miriam explained:

“I had never seen pulmonary edema that severe. I can’t express the abject terror I felt watching you, knowing you were probably dying, and me powerless, knowing medically everything that was happening, and everything that was going wrong.”

An attending physician managed to intubate Aviva. After the intubation, the attending physician was unsure about the best ventilator settings. A nurse was sobbing at the computer while writing up the progress notes. Aviva was “alive, but barely” (Miriam). Aviva had been hypoxic, almost anoxic, for minutes, which meant that she was at risk of brain damage.

Aviva was transferred to the Paediatric Intensive Care Unit (PICU). She was intubated there for four days. Those “days and nights were hell” (Miriam). The attending stated: “The next 48 hours will be hard.” Miriam observed that: “they must have lightened your meds that kept you in the medically induced coma because you started squeezing the nurse’s hand on command the next day.” After a couple of days, Aviva started communicating by scribbling on paper. She wrote: “What happened?” Many clinicians and senior hospital administrators (such as the CEO and Chairman of Emergency Medicine) visited during her stay in the PICU.

Eventually, Aviva was sufficiently well to move a few rooms down within the PICU, but in a space for patients who did not need intubation. As Aviva was being pushed to the new room, one of the ICU residents exclaimed: “Oh Aviva, you are moving down the hall. That’s great. Everyone thought you were going to die.”

Before leaving the emergency department, Aviva and her family were informed about the overdose. The errors were: Aviva was triaged to the adult ER; the order for the epinephrine was incorrect; the route for administration of the epinephrine was not correct; and the wrong dose was given. The ER note was incorrect and required correction upon discharge. Aviva was discharged from hospital on her birthday.

3.1.2. Aftermath

Aviva experienced numerous health complications following discharge. She experienced “an onslaught of new and acute diagnoses” and frequent, refractory anaphylaxis. She developed dozens of allergies and paradoxical epinephrine responses. She also had deconditioned and impaired cognition. She had hair loss. Aviva had “countless ER trips, ICU admissions, procedures and appointments.” Because of the rarity of these health issues, Aviva experienced some accusations of “attention seeking”.

Two weeks after discharge, Aviva and her mother met with the ER staff. Miriam reviewed Aviva’s medical record and discovered several inaccuracies. The correspondence from the hospital was conducted by email. The “lawyer from the hospital who was initially assigned to [their] case later allied with the lawyer who represented the hospital.”

As Aviva explained:

“I was not OK. For a very long time I was not. I had PTSD from this. Like I said, that weird noise. Every time I’d hear that noise I would freak out. Whenever I was in the hospital, there were various things that were very triggering, and especially when they would call a code overhead. I still don’t like that because I was coded. There’s just a lot. The point that I’m at where I’m able to talk about this and not be so upset and know that I won’t stay up that night crying, is a huge step. It changed a lot of my life. This event has touched every part of my life. It happened probably ten days into sophomore year, and I can definitely draw a line in the sand and be like, ‘This is where my life has changed.’ It matured me, most certainly, and it sparked an interest in medicine, but at the same time, it damaged me a lot and slowed me down, almost, because I became … I don’t know if this is directly related, but I have cell activation disorder, which is an allergic type disease. It kind of seemed to be woken up by that one event. Yeah, a lot of problems have arisen from it.”

3.1.3. Medical Negligence Litigation

Miriam hired a lawyer on the day of hospital discharge. However, the medical negligence litigation occurred just over two years later, when Aviva was almost 17. Aviva described the “tangible fear of litigation and the empty sentiments.” Initially, mediation was attempted, but no settlement offer was made. The case then proceeded to court. The case was brought by Miriam because Aviva was a minor. The court found that the emotional damage was not provable, mainly because Aviva’s grades did not drop. Therefore, Aviva’s argument about harm related to other health issues connected to the healthcare injuries, such as her hair loss, PTSD and anxiety.

Aviva received compensation. According to Aviva, “money cannot fix what happened. It might help pay for lawyers’ fees and an expensive college education! But that is not enough.” In addition, Aviva and Miriam both felt traumatised because the people on “the other side” were “familiar faces”; this was particularly challenging because Aviva continued to receive care from the same hospital after the adverse event.

Aviva did not receive any other remedies, such as an apology or an opportunity to speak to the treating team involved in the medical errors. Aviva explained her feelings as follows:

“All the explanations went through my Mom. I never got the apology or explanation from the hospital at the time or during the lawsuit…There was the compensation given, but I still never got an apology…I know that the hospital instituted a program afterwards for apologies and explanations, but I feel I missed out. I would have liked to be involved in the apology process. …I also hoped they’d learn from their mistakes as that didn’t come up in the lawsuit.”

3.1.4. Research

One year after the medical negligence litigation concluded, Aviva and Miriam participated in our research project. Aviva explained that:

“I’ve never seen the collection of those doctors and nurses ever again, and that upsets me. There has just been little to no closure, in that sense, for me. …This is the first time that I kind of feel like I’m getting closer to closure, like finally something is being done to really prevent it from happening again. I know there are effects, but I don’t know all of them, so I kind of feel like it happened, what happened to me, was for no good reason. … I would like them to talk to me now and apologise. …. There’s definitely something that can be learned from what happened to me, and I just want to know how they’ve learned from it and if they’ve put any measures in place and if I’m still a teaching case or if they have forgotten.

I’d like to have a meeting. This is a way for me to have a voice and talk to them. …I think I’ve been so separated from the whole event because it has been my mother involved with everything. It might be nice for them also to see the face of what happened. I don’t know if the nurse ever forgave herself. I know she wanted to apologise, and it’d be a nice … I don’t know if they think that I’m hostile. Certainly, I’m not. It could be good for everyone. It would definitely be the closure I need, almost, to really start to move forward from it.”

Aviva described the research opportunity as follows:

“I was definitely looking forward to this interview because it’s finally an opportunity for me to give [the hospital] the feedback other than them dealing with it themselves, or it going through someone else, like mom. I’m the actual person who went through it. There still is not a single day where I don’t think about what happened. It comes up in every part of my life. Yeah, it’s very interesting. I’m not thankful that it happened, but I think it was one of those key things that happened in my life that shaped me. It’s “The Event” because there will be no other, and hopefully there will be no other for anyone else. Even if I just saved one person from it happening, one person, that would be nice to know. …I think this is a great opportunity, especially when I read that you’ll be giving the feedback to the hospital. This is all I’ve wanted for so long.”

3.1.5. CRP

Just over six months later, after facilitation by the researcher, Aviva experienced aspects of the hospital’s CRP. As Aviva pointed out, “It’s not like we want more money or litigation. I wouldn’t need a lawyer. It’s totally just humans together.” Aviva was connected with the hospital and she “received a direct apology from the hospital”. Aviva’s adverse event became a patient safety teaching case, used in morbidity and mortality conferences, and it appeared in the hospital bulletin. Aviva continued to receive care from the hospital involved in the harm event.

3.2. Case 22

3.2.1. Adverse Event

Irene, a 52-year-old woman, experienced a pelvic organ prolapse (POP). Because of the severity of her symptoms, surgery was recommended to repair the POP. A surgical procedure called a sacrocolpopexy was undertaken. This procedure used mesh to attach the top of Irene’s vagina to the bottom of her spine. Irene stated that the treating team did not tell her that surgical mesh would be used.

3.2.2. Aftermath

After the surgery, Irene experienced numerous complications. She experienced bleeding, infections that required antibiotics, difficulty urinating, pain during intercourse, pain when undertaking daily tasks and pain when sitting. Regarding the pain, Irene explained that: “the doctors said the pain was all in my head. They wanted to assign me to a psychiatrist. But I kept saying that it was because of the surgery that I have all this pain.” Frustrated with the health provider’s response, Irene tried to find other patients with similar experiences:

“So then I decided to see if I could find other patients who had gone through the same thing. It turns out there are lots of ‘mesh ladies’, as I like to say. We just had so much in common and we all felt like no one was taking us seriously. Some of them had sued but it hadn’t worked out well for them. I’ve talked to mesh ladies who tried to sue the people who made the mesh and I’ve talked to mesh ladies who sued their surgeons. The docs have been blaming the companies and the FDA. It was really, really hard for them to prove their pain. These ladies were left feeling like no one believed them, like their pain wasn’t real. But I can tell you it is! A couple of them had even lost their homes trying to fight it. Some couldn’t even get lawyers to take their cases. The ladies who did get lawyers to help them, then had big trouble proving what had happened to them. I really wanted something done to try to protect other ladies from mesh, but their stories about lawsuits really put me off.

Then one of them told me about her lawyer, who she really liked. He had told her about a different system; an out of court system. She hadn’t actually used it. But she put me in touch with him. So, yeah, that’s how I ended up not suing the surgeon but taking this different route.”

3.2.3. CRP

Three months after the adverse event, Irene began the CRP process with the help of her lawyer. Irene described the CRP experience as follows:

“I was very, very, very nervous. They’d basically said I was crazy—the pain was all my imagination. But my lawyer was a real sweetheart. He reassured me and explained the whole process and stepped me through it bit by bit. I didn’t want lots of money, but I wanted some money to cover bills and for the hurt and pain. What I really wanted was for them to understand, to understand my pain was real and to make sure other ladies didn’t go through the same thing. My lawyer was great because he explained what would be a fair amount of compensation and how I wouldn’t get the sort of voice I wanted in the court. I was surprised by how fast the process was because I’d heard horror stories from the support group mesh ladies; some of their cases took years; years and years and years! One mesh lady lost her case and she’d already mortgaged her house to pay for the lawsuit. I’d heard enough and decided that definitely was not for me.

We all met, in just one big meeting. The surgeon was there of course, but also the others involved, so the nurse and someone high up from the hospital. They all made me feel like I had a right to be upset. The nurse was really good. She said she felt really bad for me and made a big deal about all the pain I was experiencing. Then even the surgeon (who’d said basically I made it up) said he’d come to realise how significant pain from surgical mesh problems was. They all apologised to me. And I felt like it was genuine. That really helped me a lot. They also said they are now aware of other problems with surgical mesh and there are whisperings of banning it and that they make sure they tell patients about the risks. This might sound weird, but I did walk out of there feeling, pretty amazing. I felt like, this bad thing happened to me, but they are doing something. They are doing something and other ladies might not go through this. So what happened to me wasn’t for nothing. I’m still going to that same hospital to this day. Only because of the process I went through. I doubt I’d still be there if it’d gone to court.”

Irene also reflected on the aspects of the process that she felt could be improved:

“I just wish they had reached out to me first. Why did I need to go hunting around, talking to mesh ladies and get a lawyer involved. It was my lawyer who said that he didn’t even really need to be there because it’s meant to be about talking, not litigating. So I told them in the meeting that I wanted them to make the first reach out to other patients asap after the problem. It shouldn’t be up to the patient to do that because we are in so much pain already. And they should make the compensation offer. As I said, it wasn’t all about the money for me, but I did need money and I feel like it would have been much harder if I didn’t have a lawyer there helping with the compensation. I got $30,000 in the end.”

4. Discussion

4.1. Miseries of Medical Negligence Litigation

As noted in the introduction to this article, the purpose of this project is not to rehearse the well-known weaknesses with medical negligence litigation. Nevertheless, this section will highlight four examples from the two case studies that reveal the multiple miseries of medical negligence litigation. These examples add further empirical weight to the existing evidence. The patients’ accounts are consistent with the numerous studies that outline the many shortcomings of medical negligence litigation (Schulz 2022, p. 230).

First, both patients’ accounts refer to the expense and slow pace of medical negligence litigation. These problems exacerbate injured patients’ distress. Aviva refers to compensation being used, in part, to pay lawyers’ bills and Irene notes that several “mesh ladies” had lost their homes because of the cost of litigation. These experiences echo other patient–plaintiffs’ accounts. For example, in Australia, the patient–plaintiff Sarah Walls lost her medical negligence case and the Court ordered her to pay the successful defendant health practitioners’ costs of AUD 100,000 (Whitbourn 2023). Sarah explained that she would have “lost [her] house if [she] had to pay that amount”(Whitbourn 2023), but a Member of Parliament assisted to ensure the successful party did not pursue the costs.

Economic analysts and health providers consistently highlight the exorbitant costs of medical negligence litigation (Department of Health UK 2003; Armstrong and Tess 2008). The United Kingdom’s National Health Service, for instance, reported that the cost for annual clinical negligence claims has risen by over 200% in the last decade (Department of Health UK 2003). These costs were one catalyst for their announcement in 2021 that they would review medical negligence and consider replacing it with an alternative such as a no-fault scheme (Hyde 2021; UK Parliament Health and Social Care Committee 2021).

As evidence of the slow pace of medical negligence litigation, it took over two years for Aviva’s case to go to Court, and Irene referred to members of her support group waiting for “years, and years and years” for their cases to be litigated. Throughout this time, patients may experience the “fear of litigation” (Aviva). These issues were two reasons why Irene decided not to litigate and chose, instead, to take the CRP route. As Irene explained, “one mesh lady lost her case and she’d already mortgaged her house to pay for the lawsuit. I’d heard enough and decided that definitely was not for me.”

Second, both accounts illustrate that medical negligence did not (Aviva), or would not (Irene), meet their needs. For Aviva, whose case went to court, the experience did not meet her needs. Although Aviva noted that the compensation could be used for expenses such as lawyers’ bills and higher education, she also commented that “money cannot fix what happened” and that “there was the compensation given, but I still never got an apology…I feel like I missed out. …I also hoped they’d learn from their mistakes as that didn’t come up in the lawsuit.” For Aviva, the compensation alone was insufficient to meet her needs. She also desired to be included, to have her voice heard, and to receive an apology and patient safety efforts. Aviva’s experience is consistent with the empirical literature about patients’ needs following medical injuries (Moore et al. 2017, p. 1595; McVeety et al. 2014, p. 315).

Irene did not file a medical negligence claim partly because other patients’ experiences deterred her and because what she “really wanted” could not be achieved through litigation. Irene wanted the clinicians “to understand my pain was real and to make sure other ladies didn’t go through the same thing.” Irene and Aviva’s accounts are consistent with the research on patients’ experiences of healthcare injuries, which demonstrates that patients desire other remedies such as explanations, apologies, and patient safety efforts (McVeety et al. 2014, p. 315; Walshe and Shortell 2004).

Third, both case studies illustrate the well-documented difficulties that patient–plaintiffs experience trying to satisfy all aspects and elements of the tort of medical negligence. Plaintiffs must surmount numerous legal hurdles. The first challenge is often finding a lawyer to take the case. Irene notes that many of her support group friends were unable to secure legal assistance. Furthermore, causation is widely recognised as particularly problematic for plaintiffs (Mendelson and Freckleton 2002). For Aviva, and Irene’s support group friends, it was challenging to prove that harm had been done. For Aviva, the court found that the emotional harm was not evidenced, mainly because her school grades were not adversely impacted. Therefore, Aviva had to focus on other harms such as her hair loss. For Irene’s support group friends, it was “really hard for them to prove their pain…no one believed them, like their pain wasn’t real.” This is consistent with the extensive literature about the psychologising of women and women’s pain in medicine and law (Schulz Moore et al. 2021a; Bartley and Fillingim 2013).

Finally, the medical negligence litigation process is unable to accommodate children, which meant that the claim was brought by Aviva’s mother. Therefore, Aviva felt that she “missed out”. She also explained that the research and CRP processes were useful because both were able to include her voice. In our prior research, the three children who participated in the study expressed the desire to participate in the resolution processes (Moore et al. 2017, p. 1595). Although more research is required, the children’s experiences suggest that they may need to express their feelings and may wish to be given opportunities to participate in resolution processes.

The case studies illustrate and reinforce the well-known shortcomings of medical negligence litigation. Given that some injured patients in the US can choose whether to litigate or resolve via a CRP, the case studies provide unique empirical insight into the disadvantages of litigation and why injured patients may prefer an alternative approach. In the next section, evidence from the case studies is used to explore the promise of CRPs.

4.2. The Promise of CRPs

Overall, compared to medical negligence litigation, CRPs are beneficial for injured patients because the process is not expensive and begins soon after the harmful event. More importantly, though, CRPs are better able to meet many patients’ most desired needs, such as patient safety efforts and being heard. In previous studies, we outlined a larger sample of patients’ experiences of CRPs and their comments about the beneficial aspects of the process (Moore et al. 2017, p. 1595). In this section, I highlight four key benefits of CRPs that emerged in both case studies.

First, the case studies highlighted that injured patients value genuine apologies and patient safety efforts and that these needs may be met in the CRP process, whereas these needs are unmet in medical negligence litigation. For instance, Aviva commented that she did not receive an apology after the adverse events, nor during the litigation. However, the CRP process facilitated a “direct apology from the hospital” and her adverse event became a patient safety teaching case. According to Aviva:

“Even if I just saved one person from it happening, one person, that would be nice to know. …I think this is a great opportunity, especially when I read that you’ll be giving the feedback to the hospital. This is all I’ve wanted for so long.”

Similarly, for Irene, patient safety efforts were also a positive outcome from the CRP. As Irene noted: “I did walk out of there feeling, pretty amazing. I felt like, this bad thing happened to me, but they are doing something. …There are whisperings of banning [surgical mesh] and that they make sure they tell patients about the risks.” Therefore, healthcare safety improvement is a priority for injured patients and CRPs are better able to meet that need.

Second, the case studies illustrate the salience of creating space for injured patients to be heard following harm in healthcare. CRPs can facilitate opportunities for injured patients to be heard, but that is not a goal of litigation. Indeed, one of the shortcomings of litigation for injured patients is that their experiences are condensed into legally material and clinically relevant snippets, eschewing issues that may have special importance for the patients. For example, Aviva was excluded from the resolution processes in the immediate aftermath and she felt her voice was not heard during the litigation. However, a benefit of the CRP process was to enable direct engagement with her voice and needs.

For Irene, the CRP enabled her to discuss her experiences of pain. This was particularly important because she had previously felt that her voice and experiences were dismissed and minimised. She reported that the CRP process made her feel understood and heard because it created opportunities for the health practitioners to hear about, and validate, her experiences of pain. According to Irene, during the CRP meetings, the health providers:

“made me feel like I had a right to be upset. The nurse was really good. She said she felt really bad for me and made a big deal about all the pain I was experiencing. Then even the surgeon (who’d said basically I made it up) said he’d come to realise how significant pain from surgical mesh problems was.”

Third, unlike litigation, which reportedly destroys therapeutic relationships, CRPs have the power to preserve the patient–health provider relationship (Moore et al. 2017, p. 1595). The case studies underscore the value of this outcome. As Aviva pointed out, “It’s not like we want more money or litigation. I wouldn’t need a lawyer. It’s totally just humans together.” Likewise, Irene stated that she “still [goes] to that same hospital to this day. Only because of the process I went through. I doubt I’d still be there if it’d gone to court.”

Finally, unlike clinical negligence litigation, CRPs hold promise because they may facilitate inclusion of children’s voices and experiences. These four benefits of CRPs demonstrate why they are better able to meet the needs of injured patients and their families. Nevertheless, CRPs are in their adolescence and improvements to CRP processes could enhance injured patients’ experiences.

4.3. Improving CRPs

In earlier research, we identified recommendations for CRPs (Moore et al. 2017, p. 1595). In this section, I will highlight how the insights garnered from the case studies could be used to enhance the full potential of CRPs to meet patients’ needs. When patient safety efforts are not conveyed to patients, or disseminated late, the immense harm that patients and families feel is exacerbated. CRPs could be improved by ensuring that safety efforts are communicated early.

Furthermore, the health provider should reach out to the injured patient, rather than expecting the patient to do the work to discover the CRP option. As Irene explained: “I wish they had reached out to me first. Why did I need to go hunting around, talking to mesh ladies and get a lawyer involved?” Irene’s observation is consistent with recent UK research, which found that many injured patients and families were not aware of their options following harm events (Thana et al. 2025).

Such findings reinforce the importance of the health providers taking the lead by making offers of alternative resolution processes, as well as offers of financial assistance. As Irene put it, the health provider should “make the compensation offer”, rather than waiting for the patient to ask for financial support.

In addition, if there is an injured child, the CRP process should routinely ensure that parents are asked whether and, if so, how, children could be involved in the resolution process. Reshaping CRPs in these ways should harness the full power of these processes to resolve harm in healthcare and meet injured patients’ needs.

5. Conclusions

The case study approach delves into details that cannot be accommodated in other research designs. Case studies are powerful because they offer in-depth glimpses into the complexity of medical injuries, and resolution, in their real-life contexts. For so-called “sensitive topic” (Lee 1993) research such as this, case studies offer a more comprehensive dissemination option that injured patients may value and prefer. Case studies provide a valuable chance for patients’ stories to be explored thoroughly, in the hope that their accounts may inspire patient safety efforts.

The two case studies explored in this article reinforce the significant body of prior literature, which has found that medical negligence litigation is detrimental to all involved. The enormous emotional, psychological, social, and financial burden of medical negligence litigation on all parties, but particularly injured patients, is well documented in existing research and underscored by the case studies in this article.

After decades of research reaching similar conclusions about the agonies of medical negligence litigation, it is arguably well overdue for the debate, and research focus, to move towards alternative resolution pathways. The case studies in this article lend further weight to that argument and demonstrate why CRPs are a promising alternative. CRPs can facilitate resolution by meeting patients’ and families’ needs for not only compensation, but also apologies, explanations, patient safety efforts, and being heard.

One of the most common wishes of injured patients (which cannot be addressed in medical negligence litigation) is for their experiences to prompt patient safety efforts. This wish, and need, can be met by CRPs. Injured patients should not have their distress exacerbated by the aftermath of medical injuries. Instead, resolution after medical injury should mean that their distress and injuries were “not for nothing” because the lessons can be used to improve quality, care and safety for other patients. That is the promise and power of CRPs.