The front page of The Irish Times on 8 June 2011 contained details of a proposal being considered by the Minister for Jobs, Enterprise and Innovation, Richard Bruton, to establish a medical injuries assessment board. According to the story, this board would be modelled on the Personal Injuries Assessment Board (PIAB). This is, apparently, a proposal that is being seriously considered in an attempt to reduce legal costs as part of the drive towards economic competiveness.
The article quoted potential savings of €50 million over three years, but this figure appears to have been plucked from thin air. Details of the proposal are sketchy at present, but if it is modelled on the PIAB scheme, in our view the proposal is ill conceived. It is worth reminding readers that, according to the State Claims Agency, 84,000 medical accidents are reported to the agency each year, and yet, in its latest published annual report for the year ending December 2009, there were only 421 new medical negligence claims ‘initiated against it’. Thus, in simple terms, for every 200 medical accidents reported to the agency, only one legal action is commenced. It’s little wonder that the agency states in its latest annual report that “the trend in clinical claim volumes is flat.”
It is worth emphasising, also, that the new proposed board would only be assessing quantum issues. It would not be a ‘no-fault’ compensation scheme. The plaintiff would still have to establish that care was below a reasonable standard and that this had caused injury. This will often raise very complex medical and legal issues – far more difficult to resolve than liability in a ‘straightforward’ road traffic accident case.
In our experience, because of the difficulties in proving liability, solicitors will not take on a medical negligence case unless they have strong grounds for believing that they will be able to win it. The massive investment in terms of outlays and the time necessary to successfully bring a medical negligence action can be absolutely enormous. Patients will not be encouraged by their lawyer to commence litigation unless they have been advised that they have a strong case and unless they have suffered a significant injury.
There is also very clear jurisprudence to the effect that it is unprofessional for a solicitor to commence legal proceedings unless he or she has supportive medical expert reports that are critical of the care provided to the patient. Presumably, in any medical injuries application, this requirement would be set aside and, in any event, could not apply to, or impede, members of the public completing an online form. The whole proposal, it seems to me, puts the focus on the wrong issue. In our experience, injured patients seldom have a significant problem with the value of compensation offered, but the real controversy lies in determining whether the doctor or hospital has been guilty of substandard care in the first place. Patients primarily want:
• To establish what happened and whether there has been substandard care,
• An explanation as to why the care has been poor,
• The hospital or doctor to be held accountable,
• Steps to be taken to avoid its reoccurrence with injury to others, and
• To receive an apology for what has happened.
Finally, when all of these issues are dealt with, the question of financial compensation or damages becomes very easy to resolve in most cases. Usually, this will not trouble the court. We fear that the proposal being considered at present does nothing to address the major causes of claims and puts the cart before the horse. We also believe that, in circumstances where only such a tiny number of people who suffer medical accidents actually currently pursue litigation, the potential for a massive increase in the number of claims being made will be significant. If one makes the process of bringing a claim for medical negligence as simple as filling out an online form, one could anticipate that many patients with no grounds for alleging negligence or with modest or trivial injuries, who do not currently consider making a claim, might pursue a claim.
Many of the thousands of patients who suffer trips, slips or falls on a hospital ward with perhaps trivial injuries could submit a claim. There are thousands of medication errors occurring in hospitals every year that currently do not result in claims, but again, one can see the potential for such claims to be made.
Every single claim that would be made to the proposed board would, presumably, have to be thoroughly investigated by both the proposed board and the State Claims Agency – with the agency in every case having to take up all of the medical records, interview the key nurses and doctors, and so on. All of this would add an enormous administrative burden to an already overworked system for little tangible benefit, given that, ultimately, in the vast majority of claims, liability is disputed either on the grounds of negligence or causation.
Great claims rebutted
One of the great claims made by the supporters of PIAB is that it is self-financing because it is able to charge insurance companies approximately €1,100 for every claim that it assesses. Such a fee could not be levied by the proposed medical injuries assessment board, given that the vast majority of assessed applications would involve the State, which could not (without cost) be charged a fee to do the assessment.
The second great claim made is that it is quicker than the court system for resolving claims. Given that, in the vast majority of medical negligence claims, liability is disputed at least until shortly before trial, it seems that such a scheme could only add significantly to the time it takes to resolve a claim, as the claim would be stuck in limbo for the duration of the assessment. Such further delay would have a negative impact on injured patients who already feel badly let down by the State. We are fortunate enough to be a member of the President of the High Court’s Working Party on Periodic Payments and Medical Negligence Reform, established last year. The group has already produced one report, proposing a scheme for periodic payment orders for dealing with catastrophically injured persons (including birth injury claims). It is currently working on a set of rules for dealing specifically with medical negligence actions. The purpose is to seek to encourage a speedier and more efficient handling of such claims and their earliest possible settlement. We believe that there is great potential for this working group to achieve a far better solution to the issue and bring about rule changes that encourage the early settlement of claims. This would have the potential to save significant amounts of legal costs.
The current proposal by Minister Bruton, in our view, will achieve no such result and, indeed, is likely to result in a proliferation of claims – which, We are sure, is not what he intends in the current economic climate.