Why Litigation Is Often the Wrong Starting Point
This is the last of my 3 write-ups on medical negligence. For this, I will paraphrase my earlier article titled “Use of Alternative Dispute Resolution in Healthcare” published in Journal of Alternative Dispute Resolution (ADR) & sustainability Vol. 1(2)-(2024).
Medico-legal disputes arise at one of the most emotionally charged intersections in society: where illness, injury, or death meets expectations of care, trust, and accountability. When an adverse clinical outcome occurs, patients and families understandably seek answers, explanations, and sometimes redress. Healthcare professionals and institutions, on the other hand, respond under pressure, balancing patient safety, staff welfare, reputational risk, regulatory scrutiny, and legal exposure. Too often, these competing pressures push parties rapidly toward litigation.
Litigation, however, is rarely the most appropriate first response to healthcare conflict. It is adversarial by design, slow to resolve, costly to sustain, and emotionally exhausting for all involved. More importantly, it is poorly suited to addressing the underlying realities of many medico-legal disputes, which are frequently driven not by clear negligence, but by communication failures, system weaknesses, unmet expectations, or the human need for acknowledgement and understanding.
A critical starting point is recognising that not every healthcare dispute is truly about negligence. Many disputes arise from perceived negligence rather than actual legal negligence. Medicine is practised in conditions of uncertainty and risk, and adverse outcomes can occur even when care meets accepted professional standards. Litigation tends to flatten this complexity into a binary contest of fault, obscuring the distinction between non-negligent harm and substandard care. Alternative Dispute Resolution (ADR), particularly mediation and conciliation, offers a forum in which these distinctions can be explored openly and constructively.
Unlike litigation, mediation is not primarily concerned with winning or losing. Its strength lies in its ability to accommodate the full human and institutional dimensions of healthcare disputes. It allows patients and families to ask questions, receive explanations, and be heard in ways that court processes rarely permit. At the same time, it allows clinicians and institutions to explain decision-making, contextualise outcomes, and address concerns without the immediate pressure of adversarial positioning. In many cases, what patients seek most is not punishment or financial compensation, but clarity, honesty, and reassurance that lessons have been learned.
From an institutional perspective, litigation often escalates risk rather than containing it. Once formal proceedings begin, communication typically narrows, documentation is weaponised, and learning processes are suppressed out of fear of liability. Defensive medicine, staff demoralisation, and reputational damage frequently follow. ADR, by contrast, can be integrated alongside clinical governance processes in a way that preserves learning while managing legal exposure. When introduced early, it can prevent disputes from hardening into entrenched legal battles.
The constitutional and legal context in Kenya reinforces this approach. The Constitution expressly encourages the use of alternative forms of dispute resolution, reflecting a recognition that courts should not be the default forum for every conflict. Yet despite this constitutional mandate, ADR remains underutilised in healthcare disputes. One reason is the absence of clear operational frameworks that translate constitutional principles into practical processes within health institutions. Another is lingering scepticism among both clinicians and lawyers, who may perceive ADR as either legally risky or insufficiently robust. In reality, well-designed ADR processes strengthen rather than weaken legal risk management.
ADR is particularly valuable in the sensitive post-incident period. Internal reviews, root cause analyses, and incident meetings are essential for patient safety and quality improvement, but if poorly structured they can inadvertently generate material that later fuels litigation. Carefully designed mediation or conciliation processes can sit alongside these reviews, providing a controlled, confidential environment for engagement with patients and families without contaminating governance processes or undermining privilege. In this way, ADR becomes part of post-incident risk management rather than an afterthought.
Employment and labour considerations further underscore the value of ADR. Following serious adverse events, institutions sometimes feel compelled to take swift disciplinary action against staff in order to demonstrate accountability. Where outcomes arise from system failures rather than individual misconduct, such responses can expose employers to claims of unfair termination or unfair labour practices, while simultaneously eroding safety culture. Mediation offers a way to address internal conflict, clarify responsibility, and restore professional relationships without defaulting to punitive measures that create additional legal exposure.
None of this suggests that litigation has no place in healthcare disputes. There are cases involving gross negligence, wilful misconduct, or intractable positions where court intervention is necessary. ADR is not a substitute for the rule of law. Rather, it is a complementary mechanism that should be deployed thoughtfully and early, before positions harden and options narrow.
For ADR to function effectively in medico-legal matters, it must be approached with seriousness and integrity. Processes must be trusted, neutral, and informed by an understanding of healthcare realities and medico-legal principles. Confidentiality must be respected, and participants must engage in good faith. When these conditions are met, ADR has the potential to resolve disputes more quickly, at lower cost, with less emotional harm, and with greater opportunity for learning and improvement.
Ultimately, medico-legal disputes are not just legal problems; they are human and organisational problems. Litigation answers the narrow question of liability, often years after the event. ADR, when properly embedded into healthcare governance, addresses the broader needs of accountability, understanding, healing, and safety. For healthcare institutions seeking to manage risk while remaining faithful to their core mission of care, ADR should not be viewed as an alternative of last resort, but as a first-line strategy in appropriate cases.