Needle and the damage done
A working group established nearly two years ago to look at reducing medical negligence costs published its report in September. But, says Johan Verbruggen, we need a little less conversation
The interdepartmental working group set up by the Minister for Health to examine the rising cost of medical negligence claims and to consider mechanisms to reduce costs – with a specific focus on high-value claims within the healthcare system – published its report on 20 September.
This is not the first time that the cost of medical-negligence litigation has been assessed by stakeholders and reported on. Rather, it has been the subject of multiple reports over the years.
As recently as December 2020, there was the Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims on how best to improve the medical-negligence system. The expert group was chaired by Justice Charles Meenan and it comprised both plaintiff and defence lawyers.
Regrettably, the changes to the litigation system as recommended in the Meenan Report are yet to be implemented.
It comes as no surprise then that, after two years of analysis, the interdepartmental working group repeats many of the Meenan Report’s recommendations.
Heartbreak hotel
It is worth noting that the working group did not include representatives from patient-advocacy groups or plaintiff lawyers. The group comprised representatives from the HSE, State Claims Agency, and a number of Government departments.
Nine submissions were received through public consultations (via email or post), of which five were from doctors. Only two were received from members of the public. An additional 11 submissions were received from organisations approached by the group directly.
Given the group’s composition, the low number of public submissions is perhaps not surprising. An injured patient or a family that has lost a loved one in a hospital may well have felt hesitant to engage with a group that predominantly represented the medical and defence perspectives.
Those on the plaintiff side who participated described their experiences of the litigation process as “triggering, re-traumatising, shocking, and horrible”, finding its adversarial nature ill-suited to those already suffering from significant trauma.
Litigation is not undertaken lightly, as it can be both costly and emotionally exhausting.
However, for those who have been wronged, the legal process often represents the best avenue to seek clarity about their care, receive explanations, and pursue an apology. They may also desire to prevent a similar harmful event occurring to someone else in the future.
Financial compensation is also important; especially for those caring for a child, parent, or spouse who has been left with catastrophic injuries.
All shook up
Healthcare professionals also reported to the group that they experienced significant emotional harm from the litigation process. A recent survey by the Medical Protection Society found that over half of the 200 healthcare professionals surveyed reported lower self-esteem and a negative impact on their family life after experiencing a claim.
The adversarial environment and media coverage further exacerbate stress, with practitioners feeling they cannot respond adequately to accusations.
Practitioners reported adopting defensive practices to mitigate the risk of litigation. Some expressed concerns to the group that the system seems to favours quick settlements over defending their practices in court.
This may be hard for plaintiffs to reconcile, as their experience often reflects a perception of the State “delaying and defending” – even in cases where clear negligence exists.
The rising cost of litigation was found by the group to be mainly driven by the increasing financial settlements in a small number of catastrophic-injury cases, particularly those involving perinatal brain injury and cerebral palsy.
In 2022, clinical catastrophic claims represented 59% of the total estimated outstanding liability (EOL) – the EOL for these claims increased by 59% from 2018 to 2022. The settlement costs of these claims have risen dramatically, with some awards reaching up to €35 million.
While clinical catastrophic claims accounted for 53% of total litigation costs between 2018 and 2022, they only represented 2% of new claims filed.
The rising cost is attributable to factors such as increased life expectancy for injured parties, advances in assistive technologies, care and accommodation requirements, loss of earnings, and rising inflation.
The impact of these factors is compounded by the reduction in the real rate of return following the Court of Appeal judgment in Russell (a minor) v HSE.
Non-catastrophic claims, by contrast, accounted for 31% of new claims and 23% of total costs over the same period. The primary driver in this category is the number of new claims, rather than the settlement cost, although the cost per claim is also increasing.
It is notable that the number of new clinical claims received has been decreasing over the past few years. However, the number of new claims received each year still exceeds the number of claims finalised in any year. This makes for an increase in the number of open active claims being managed.
Promised land
Ireland is not alone in facing rising costs associated with medical-negligence claims. The report draws comparisons with England (where the cost of claims rose from £1.3 billion in 2012/13 to £2.4 billion in 2021/22) and with New Zealand and Florida – both of which operate ‘no fault’ systems for medical injuries.
Although direct comparisons are difficult due to differences in healthcare and legal systems, the common trend of increasing litigation costs is apparent.
Certainly, there are steps that could be taken to make the litigation system less combative and more collaborative. Looking at the reforms to litigation recommended by this working group, they are, in essence, the same as those put forward in the Meenan Report in 2020.
The group’s recommended reforms include:
Pre-action protocols
A pre-action protocol (PAP) aims to promote the early resolution of disputes before litigation begins. The 2012 Report of the Working Group on Pre-Action Protocols highlighted several benefits:
- Ensuring that patient records are disclosed early enables both parties to assess potential claims or defences comprehensively,
- PAP provides an opportunity for settlement discussions or alternative dispute resolution (ADR), potentially avoiding litigation altogether,
- By outlining key areas of disagreement early, PAP helps streamline the litigation process if settlement is not possible,
- PAP allows patients to receive appropriate apologies for adverse events, providing emotional relief and closure without necessarily progressing to court. It was, in fact, part of the Government’s ‘Justice Plan 2023’ to deliver pre-action protocols by the fourth quarter of last year. It is unfortunate that this target was not met. Considering the time that has passed since this was first legislated for in 2015, it seems unlikely that it will be implemented by the fourth quarter of next year without significant progress.
Enhanced case management
Another critical reform is the implementation of enhanced case-management, something that was recommended in the 2013 Report of the Working Group on Medical Negligence and Periodic Payments. The advantages of such an approach include:
- Early identification of key issues could lead to quicker settlements,
- Mediation would become a mandatory step, encouraging cooperation and reducing combative tendencies,
- Case-management rules would ensure cases progress more swiftly to trial where settlements could not be reached,
- Witness statements could be agreed upon in advance, reducing the stress of giving oral evidence,
- Enhanced case management, in conjunction with PAP, is expected to transform the medical-negligence litigation process by fostering co-operation and minimising unnecessary delays.
Dedicated High Court list
Another of the group’s recommendations, which was also put forward by Meenan, is the creation of a dedicated list within the High Court for medical-negligence claims.
Although the establishment of a separate court for these claims is, at this point in time, deemed unfeasible due to staffing constraints, a specialised High Court list would expedite urgent cases and ensure that judges with expertise in medical negligence would handle these cases.
This would allow for better case management and faster resolutions.
Mediation
Mediation is playing an increasingly important role in resolving medical-negligence claims without the need for a trial. According to the State Claims Agency’s 2022 report, 58% of claims were settled without court proceedings, and 34% of these cases involved mediation.
Mediation offers a less adversarial platform for the early resolution of claims and has been particularly successful in resolving complex cases, such as those related to the H1N1 vaccination.
By implementing PAP and case-management reforms, more claims could be resolved through mediation at earlier stages.
PPO resumption
Those representing plaintiffs with catastrophic injuries have long urged the Government to implement new regulations allowing for a system of periodic payment orders (PPOs) for High Court settlements.
A PPO is a court order requiring the defendant to make annual payments to the plaintiff for the remainder of their life, rather than paying out compensation in a single lump sum.
This system would ensure regular, inflation-adjusted payments for lifetime care costs in cases of catastrophic injury. The push for PPOs has been ongoing for over a decade, with families and their legal representatives arguing that it is a fairer form of compensation.
Although statutory PPOs were introduced in 2017, the 2019 High Court ruling in Hegarty v HSE determined that the indexation rate for PPOs, as set by law, would lead to under-compensation due to its failure to consider wage inflation. As a result, many claimants have opted for lump-sum payments.
In other cases, settlement agreements have allowed for the parties to negotiate an appropriate sum for a set period – for example, every three or five years – after which the parties re-engage to arrive at a figure for the next period.
This arrangement, however, involves legal proceedings, and the agreed figures need to be ruled by the court. It also means repeated medical assessments, placing additional strain on injured individuals and their families. Frustrated by this process, many families opt for lump-sum payments instead.
The Minister for Justice recently accepted expert recommendations to create a more equitable system, where the PPO indexation rate will be based on 80% of the annual rate of change in nominal hourly health earnings, and 20% of the harmonised index of consumer prices, ensuring payments keep pace with healthcare costs and inflation. It is understood that regulations are being created to this end.
As acknowledged by the group, the introduction of PPOs is seen as a vital reform for ensuring that families of catastrophically injured individuals receive adequate, long-term compensation without the burdens of repeated court proceedings and financial uncertainty.
Suspicious minds
The group has identified a difficulty in obtaining expert-witness reports, which they say is because clinicians are often too busy or are hesitant to testify in cases involving colleagues.
According to the group, this results in a reliance on a small pool of local experts or experts from abroad who may lack familiarity with the Irish healthcare system. That may be the defence perspective, but it is not necessarily the plaintiff’s.
The group suggests that this issue of expert unavailability might best be addressed by creating an independent panel of available expert witnesses within Ireland or abroad, where appropriate, who may be called on to provide either plaintiff or defendant opinion.
The most obvious problem with this proposal is that the creation of such a panel does nothing to guarantee an increase in the number of willing and qualified experts.
The experts would need to be practising in their specialty, so their unavailability due to clinical commitments would continue to pose a problem.
In fact, insisting on both parties to litigation instructing experts from a panel would exacerbate the problem by confining them to a smaller pool of experts than is currently the case. That would only serve to cause additional delays.
For plaintiffs who have suffered harm in an Irish hospital, there may be a concern about the potential bias of Irish-based expert witnesses. Indeed, the potential for this is acknowledged in the group’s report.
As has been made clear by recent Court of Appeal judgments, it is the responsibility of the instructing parties to ensure that the expert witnesses they call to give evidence uphold their duty to assist the court by offering objective, unbiased opinion in relation to matters within their expertise.
Any failure to comply with such requirements risks both the exclusion of their evidence and adverse consequence in costs.
The majority of medical-negligence cases in Ireland are brought against the Health Service Executive, an entity of the State. As a matter of logic, and of fairness, the State could not then be charged directly or indirectly with selecting the experts tasked with reviewing the acts and omissions of its own employees or agents.
It’s now or never
There has long been bipartisan acceptance of the need for PAPs, case management, and a dedicated High Court list for medical-negligence cases.
It is imperative that the Government introduces these mechanisms as a priority, to structure the early stages of engagement between the parties and to encourage early resolution of claims.
The resumption of PPOs, facilitated by amendments to the Civil Liability (Amendment) Act 2017, must also happen to end the deeply unsatisfactory situation we have at present, where families are faced with re-entering the litigation process every few years.
Johan Verbruggen is head of medical negligence at Fieldfisher Ireland.
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Johan Verbruggen
Johan Verbruggen is partner and head of medical-negligence claims at Fieldfisher.