Pre-Trial Settlement of Medical Disputes for Clinics

Alla Tsymanovska, Attorney

Source: Yurydychna Gazeta

In medical disputes, the term “settle” is often perceived as a sign of weakness, yielding in emotional intensity to calls to “file a lawsuit,” “report to the police,” or “initiate an MoH audit.” However, for modern healthcare businesses, pre-trial dispute resolution is not a capitulation but an effective tool for legal compliance and risk management. It allows a conflict to be localized before it becomes unmanageable, public, and critically expensive for the medical institution.

The Emotional Factor and the Clinic’s First Communication

A medical dispute almost always carries an emotional component. A patient or their relatives frequently arrive not only with a legal claim but also with feelings of fear, resentment, loss of trust, or a lack of understanding of what occurred. The clinic, for its part, automatically perceives any dissatisfaction as an attack on its professional reputation and goes into a defensive lockdown. At this point, the parties lose the space for constructive dialogue.

In my practice of handling medical disputes at Ilyashev & Partners Law Firm, a significant portion of conflicts escalates into a critical phase not because of the medical outcome itself, but due to a failure in initial communication. The patient was not provided with a timely explanation of the situation, was denied access to their medical records, received a formalistic boilerplate reply, or was accused of “inappropriate behavior.” It is precisely following such neglect that attorney requests, complaints to the NHSU, statements of criminal offenses, and toxic media coverage emerge.

Therefore, for the manager or investor of a medical center, the question should not be: “Should we concede to the patient at any cost?”. The correct question to ask is: “Do we have an opportunity to resolve the situation professionally before it is evaluated by an investigator, a forensic expert, a prosecutor, or an enraged public audience?”.

The Economics of a Medical Dispute: When Negotiations Are Cheaper Than Litigation

For the top management of large private clinics, a medical conflict is never limited purely to the legal dimension. It represents a comprehensive blow to the business, involving:

• reputational losses – patient churn and decreased brand trust;
• staff destabilization – physician stress, suspension from duties, internal conflicts;
• financial and time expenses – retaining attorneys, funding independent expert assessments, and diverting management resources from operations.

Pre-trial settlement enables the clinic to remain an active participant in the process rather than merely reacting to external actions. Before filing a police report or a lawsuit, the parties can independently determine the communication format, the scope of explanations, possible compensation options, follow-up treatment, corrective procedures, or independent expert evaluations. Once a criminal investigation is launched or a public scandal erupts, the room for flexible solutions narrows substantially.

Pre-trial settlement in medical disputes should be viewed as an integral part of the risk management system, where it is vital to grasp the scale of the conflict promptly, evaluate the clinic’s standing, and propose options for its resolution.

Which Medical Disputes Can Be Settled Before Court and Police Intervention?

Not every medical incident can or should be concluded with an agreement. If the case involves a patient’s death, severe consequences, signs of a gross violation of standards, or potential criminal risks, the clinic must proceed with extreme caution. However, even in complex scenarios, there remains room for proper communication, providing documentation, organizing an internal review, engaging an independent expert, or negotiating the civil liability outcomes.

Within the framework of pre-trial medical dispute resolution, the parties most frequently reach an agreement on:

• providing exhaustive medical documentation and explaining the medical rationale behind the treatment;
• organizing a follow-up examination or corrective treatment by another specialist at the clinic;
• full or partial refund of the cost of medical services;
• compensation for the costs of treating complications at other specialized institutions;
• issuing formal apologies in a proper, legally safe manner;
• signing a confidential settlement agreement with the payment of an agreed amount.

Crucial for healthcare businesses: negotiations and pre-trial settlements do not constitute an automatic admission of guilt by the clinic or the physician. It is a legal instrument to de-escalate tension, granting the institution’s legal department time to conduct an internal audit and build a strong position.

Commencement of Criminal Proceedings in a Medical Dispute

As long as the conflict remains within the “clinic–patient” domain, the parties can select their resolution tools. However, once a statement of a criminal offense is submitted, the situation shifts into a different realm. Pursuant to Article 214 of the Criminal Procedure Code of Ukraine, an investigator or prosecutor is obliged immediately, and no later than 24 hours after the submission of a statement or report, to enter the information into the Unified Register of Pre-trial Investigations and commence an investigation.

This does not imply that every patient complaint confirms the existence of a criminal offense. For the clinic, however, it entails the emergence of procedural risks:

• staff interrogations;
• temporary access to items and documents;
• seizure of medical records;
• expert examinations;
• the necessity to formulate a legal defense within the framework of criminal proceedings.

This is why lawyers must enter the case before the patient crosses the threshold of law enforcement authorities. Repeated aggressive complaints, written refund demands, or formal inquiries from external attorneys are direct indicators that the clinic requires an urgent medical and legal assessment.

Regulatory Framework: Mediation, Petitions, and Patient Rights in Ukraine

Ukrainian legislation provides the parties with sufficient tools for pre-trial settlement.

The Law of Ukraine “On Mediation” explicitly provides for the possibility of conducting mediation to prevent conflicts or settle disputes, including civil, commercial, and administrative cases, as well as in criminal proceedings for reconciliation between the victim and the suspect or the accused.

Mediation may be conducted before filing a court case, during the pre-trial investigation, during court proceedings, or even during the enforcement of a judgment. For medical disputes, the principles of voluntariness, confidentiality, mediator neutrality, self-determination, and equality of parties are of paramount importance. Participation in mediation cannot be deemed an automatic admission of guilt or a waiver of a legal position. This allows the clinic to engage in the negotiation process without undue risk, provided the procedure is structured correctly.

The Fundamentals of the Legislation of Ukraine on Healthcare guarantee the patient’s right to information regarding their health status, access to relevant medical records, and the right to medical confidentiality (physician-patient privilege). Consequently, a pre-trial settlement cannot be built on concealing documents or pressuring the patient. On the contrary, a high-quality settlement often begins with the clinic providing a clear response, explaining the medical rationale, and acting within the bounds of the law.

When Should a Clinic Initiate Negotiations to Resolve a Medical Dispute?

The optimal moment for negotiations usually arrives sooner than a clinic manager might anticipate. If a patient has already published a negative post, retained an attorney, or filed a police report, the clinic can still communicate, but its options are limited. Conversely, at the stage of the initial grievance or dissatisfaction, there is an opportunity to steer the conflict into a controlled format.

Favorable indicators for initiating a pre-trial settlement include:

• a conflict regarding the outcome of an aesthetic or dental procedure (aesthetic medicine, plastic surgery, dentistry, where the criterion of “beauty” is frequently subjective);
• the presence of obvious technical or service errors committed by the staff (breach of professional deontology, delay in care, billing errors);
• predictable medical complications about which the patient was not properly informed in writing;
• a patient who is open to dialogue and willing to discuss compensation without involving the media.

When Should You Not Settle?

Pre-trial settlement should not turn into an automatic reaction to any claim. There are situations where a clinic should not rush into agreements but must first perform a deeper medical and legal analysis. Legal support in medical disputes requires particular caution in cases involving:

• signs of patient blackmail (consumer extremism) with clearly unsubstantiated and astronomical financial demands;
• suspicion of the patient falsifying documentation from other clinics;
• conflicts affecting the rights of minors, where any payment made without the approval of guardianship authorities may be declared void;
• the existence of a real threat of disclosure of medical secrets to third parties by the claimant themselves.

In such instances, negotiations are possible, but they must be highly cautious, structured, and legally supported. The clinic’s objective is not to “buy silence,” but to act lawfully, professionally, and without creating new liabilities.

What Must a Clinic Do Before Commencing Negotiations?

The success of negotiations depends on thorough preparation. In the practice of medical dispute resolution, Ilyashev & Partners Law Firm recommends that clinics undergo three mandatory audit stages before presenting any offer to a patient:

• Build an independent position: it is necessary to compile the medical records, verify the informed consent, analyze the treatment chronology, obtain statements from the staff, evaluate communications in messaging apps, and audit bills, certificates of acceptance, prescriptions, and electronic health record entries.
• Conduct a medical analysis of the situation: did a complication actually occur, was it predictable, were the risks explained, were the standards adhered to, were there signs of a delayed response, and is there a causal link between the institution’s actions and the harm claimed by the patient.
• Perform a legal assessment: is there a risk of a civil lawsuit, could the situation become the subject of criminal proceedings, is there a risk of a complaint to the NHSU or the MoH, does the case affect personal data or medical secrecy, and is an insurer, an expert, or legal counsel required.

Formats of Pre-Trial Medical Dispute Resolution

Pre-trial settlement is not restricted to a single model. In medical disputes, it can take several formats:

• response to a formal complaint;
• attorney-to-attorney negotiations;
• a meeting involving the clinic management and the patient, mediation;
• independent medical or forensic expert assessment;
• a written settlement agreement;
• a compensation offer or arrangement for follow-up treatment.

It is crucial that the settlement format matches the complexity of the case. A conflict over service or communication does not require the same procedure as a case involving a patient’s death or severe outcomes. However, in both situations, a chaotic response inflicts more harm than taking a pause for a professional review.

How to Prepare a Medical Dispute Settlement Agreement?

Mandatory terms for a safe agreement from the clinic’s perspective:

• clear definition of the subject matter of the dispute: the agreement describes in detail the specific treatment or period regarding which the parties arose disagreements;
• absence of unconditional admission of guilt: the wording must indicate that the payment of funds or provision of services is an act of goodwill by the clinic aimed at maintaining loyalty, rather than an admission of medical malpractice;
• confidentiality provisions (NDA): the patient undertakes not to disclose the fact of signing the agreement, the compensation amount, and not to publish negative reviews online or in the media under the threat of strict financial penalties;
• finality of settlement clause: the patient confirms that upon fulfillment of the terms of this agreement, they have no present and will have no future claims (material, moral, or criminal) against the institution and its employees regarding this incident.

Typical Mistakes Made by Clinics When Attempting to Settle with Patients

• Commencing negotiations without analyzing documentation. The clinic offers a refund or corrective treatment without understanding whether a defect in care actually exists, whether there is a causal link, and what risks it is factually assuming.
• Speaking to the patient with “different voices.” In a medical dispute, chaotic communication often generates more risks than the initial claim.
• Confusing settlement with pressure. A patient must not be threatened, shamed, demanded to stay silent, or have the provision of documents conditioned upon waiving claims. Such actions only intensify the conflict and can create separate legal issues for the clinic.
• Ignoring relatives or disclosing medical information to them without a proper legal basis. In complex medical conflicts, the issue of communication with relatives must be evaluated separately: whether there is patient consent, legal representative status, a power of attorney, or another lawful ground for receiving information.
• Reaching verbal agreements. If the parties have reached an outcome, it must be executed in writing, clearly, and in a legally sound manner.

Practical Step-by-Step Action Plan for a Medical Institution to Settle a Medical Dispute

To prevent chaos when a conflict arises, a clinic must have a clear internal policy in place:

• log the patient’s grievance or formal claim;
• designate the person responsible for communication;
• gather medical documentation, agreements, informed consents, bills, certificates of acceptance, correspondence, and internal records;
• conduct an initial medical analysis of the situation;
• perform a legal risk assessment;
• verify who is entitled to receive medical information;
• formulate a unified position for the clinic;
• determine the settlement format: response, negotiations, mediation, expert assessment, or agreement;
• refrain from making rash admissions or informal promises;
• execute a written agreement or a reasoned response.

Pre-trial settlement of a medical dispute does not guarantee the clinic an absolute absence of claims in the future, but it grants the institution an opportunity to maintain control over the situation before the conflict escalates into court, criminal proceedings, an audit, or a public reputational crisis.

The practice of medical dispute resolution at Ilyashev & Partners Law Firm confirms that the success of resolving a medical dispute depends on the speed of reaction and a systematic approach. Pre-trial settlement allows for the reduction of legal, financial, managerial, and reputational losses for healthcare businesses.