A High Court judge has called for a “radical overhaul” of the management of cases involving medical and clinical negligence.
Parents of catastrophically injured children regard the existing litigation process as “cruel and disadvantageous” and often feel “a huge sense of grievance”, Ms Justice Mary Irvine said. She “would empathise with that feeling” and the process did not give families money at the start when it was most needed.
She believed new protocols and rules of disclosure would lead to early resolution and early admission of liability when justified.
Recommendations in that regard had been with the Minister for Justice for “a very long period” and it was in his hands to introduce the necessary enabling legislation for a better system, the judge added.
She made the comments when the HSE asked to outline a number of matters arising from the judge’s criticism of the approach by the State Claims Agency in the recent case of Grace Orchard, an eight-year-old girl with cerebral palsy from Carrigaline, Co Cork. The child secured a €5.8 million settlement after suing the HSE over the handling and management of her birth at St Finbarr’s Maternity Hospital, Douglas, Cork, in February 2006.
Settlement
Liability was conceded last January, three years after the case was initiated, and the settlement was reached on the 12th day of a hearing to assess damages. At that time, Ms Justice Irvine said she regretted it had taken more than three years for the HSE to say it was culpable which seemed an "extraordinary length of time."
Yesterday, Patrick Hanratty SC, for the HSE, said the State Claims Agency, as indemnifier in this case, had “significant concerns the court may be of the opinion it has a policy to deny liability as a tactic”. The biggest problem in this case was causation [of the child’s injuries] and there was a significant delay in receiving a specialist report, counsel said.
Conceded liability
After the HSE got that report on January 16th, 2014, it conceded liablilty and the Orchard side were immediately told liability was not an issue. Mr Hanratty said there was a concern the court "might have the view cumulatively that perhaps there is something amiss about the policy of admission of liability".
Ms Justice Irvine said she finds “very difficult” her role trying to deal with parents in catastrophically injured cases. Most parents even at the time of settlement are unhappy with the amounts. It was natural for every parent to want the best for their children but this was allied to a sense of frustration with the litigation process.
The judge said she did not believe there was any policy in the HSE to withhold admission of liability. Many reports come late in the day and all of this made her of the view there was a need for “a radical overhaul” of how clinical negligence is managed.
Joseph Cuddigan, solicitor for the Orchard family, said it “beggars belief” the State Claims Agency would not have engaged a different expert and instead waited almost a year for the specialist report which led to the admission of liability last January. The family incurred “hefty bills” in standby fees for expert witnesses as a result of liability not being conceded at an early stage.