Medical Protection Society ‘surprised’ at report’s suggestion of falling legal costs

An organisation protecting the interests of medical and healthcare professionals has said it is “surprised” at a suggestion in an independent report for the Bar of Ireland that legal costs are falling here.

The Medical Protection Society (MPS), which indemnifies some 300,000 members in several countries including Ireland, said its data showed legal costs and awards of damages here rose by 16 per cent and 37 per cent respectively between 2011-2019.

Legal costs in Ireland continue to be higher than all other countries around the world where MPS supports its members, said Rob Hendry, medical director of the MPS.

The high cost of medical negligence has an impact on healthcare professionals who pay for indemnity to protect themselves from claims, he added.

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In a statement to The Irish Times, Dr Hendry said the MPS was “surprised” to read a suggestion in an independent report by consultants EY, based on data of 256 cases from 2011-2019, that litigation costs appeared to be falling in Ireland.

“As an established provider of professional indemnity for doctors, we believe our data based on 1,188 cases within a similar timeframe provides a clear picture of the problem. MPS data reveals a 37 per cent increase in the average damages award and a 16 per cent increase in legal costs.”

He reiterated a call by the MPS and various organisations including the Irish Hospital Consultants Association, Irish Dental Association and Irish College of General Practitioners for the speedy introduction of legislation for pre-action protocols, saying those would make “a notable contribution” to reducing legal costs.

Noting the Government had indicated support for such protocols, he said they would mean earlier investigation and resolution of claims, without the need to go to court, by promoting early identification and communication of the issues in dispute.

This would save unnecessary expense and benefit all parties, particularly patients who could receive compensation at a far earlier stage of the process, he said.

“Perhaps most importantly, it could allow vital funds to be invested back into healthcare, as opposed to the deep pockets of the legal world.”

Dr Hendry said the MPS experience is that solicitors “can maximise costs by delaying resolution”.

Solicitors may, for example, not provide key information needed to investigate a claim until the last possible date required by the court rules, he said. “Such delays are frustrating for doctors but equally for patients, who may find themselves involved in unnecessarily protracted court cases at a time when they need financial help to pay their mortgage or access care.”

Just over half — 53 per cent — of cases here are resolved at the pre-action stage compared to 70 per cent in England and Wales, where pre-action protocols have been in place for more than 20 years, he said.

‘Claims environment’

Dr Hendry said the total costs for clinical claims paid out by the State Claims Agency, as reported in the NTMA Annual Report 2021, was €357.4 million, including awards/settlements and legal costs, an increase of 11.1 per cent (€35.6m) from the year before.

“Unfortunately, the claims environment in Ireland remains challenging and legal costs continue to be higher than all other countries around the world where MPS supports its members.”

Awards of general damages are “often many multiples” of what is awarded in the UK, he added.

According to the annual NTMA reports over the past three years, the SCA agreed, following negotiations with lawyers, to pay €35.1m for legal costs in clinical negligence cases in 2019, €31m in 2020 and €30.3m last year. The actual costs sought in those three years were €55.4m, €51.3m and €49.9m

The MPS was responding to the EY report, a strategic review of the future landscape of The Bar of Ireland (TBOI), commissioned by TBOI and published last month by TBOI.

Among various findings, the report concluded Ireland has too many barristers and many are struggling to earn an adequate living.

In a brief section on legal costs, the EY report said, while it has not been possible to track the evolution of legal costs over time due to a lack of data, the increased number of barristers here would suggest that increased competition between barristers over the last decade equates to downward pressure on fees, and hence competitive legal costs to the end user.