‘Adversarial’ approach to clinical negligence contributing to State bill of €4.1bn

The State’s outstanding liability for clinical negligence claims climbed to an estimated €4.1 billion by the end of last year and the spiralling costs of such claims is “not sustainable”, the director of the State Claims Agency has said.

The claims system is “not fit for purpose” and urgently needs reform, Ciarán Breen said. It is “too adversarial”, “not transparent” and “not serving patients well”.

Three key reforms include the introduction of pre-action protocols (Paps) aimed at early resolution of clinical litigation, Mr Breen said.

It is necessary to set an appropriate real rate of return on awards/settlements in catastrophic injury cases intended to fund lifelong care, he said.

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The Minister for Justice has received an expert group’s report on that issue, and he understood she would exercise her ministerial power to set the rate, adding he hoped judges would generally adhere to that rate.

Because a lower rate of return means higher awards, claims costs increased significantly after a 2015 High Court decision reducing the rate. Other contributors to higher claim costs include legal costs and the cost of care.

Mr Breen said another key reform is to have an appropriate indexation rate for periodic payment orders, aimed at ensuring the lifelong care costs of the catastrophically injured will be met.

These reforms would mean fairness, transparency, certainty and speed up the resolution of cases, he said. “If we get this right, patients and their families will not have to undergo the kind of trauma that we have in the current system.”

Mr Breen was among Irish and UK experts who addressed a conference in Dublin on Tuesday of lawyers, healthcare professionals, and other stakeholders to discuss reform of clinical litigation in Ireland.

Organised by Hayes Solicitors and chaired by Attorney General Rossa Fanning, the keynote speaker was the Court of Appeal’s Mr Justice Charles Meenan who chaired an expert group on reform of the clinical litigation system.

The judge urged the introduction of Paps and case management among several proposed reforms, noting these already apply to commercial litigation.

It is “almost inevitable” there will be another medical crisis and he hoped, when that does happen, there will be appropriate Paps to deal with it, he said.

Prof Rhona Mahony, an obstetrician and chairwoman of a Government working group whose report on proposals for reducing the rising cost of clinical claims has just been presented to Government, supported reform, saying the current system impacts severely on injured parties and the healthcare professionals involved.

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