One of the saddest sights in Irish health is of the parents of a catastrophically injured child emerging from court to explain how they had to fight for years for the settlement they deserve.
The scenario arises all too frequently and compounds the initial wrong of medical error with years of delay. The reasons for this delay give rise to much finger-pointing.
The State Claims Agency, which processes claims for injuries in Irish hospitals, denies it is at fault. Chief executive Ciarán Breen says it often gets "saddled" with the blame when "nothing happens" from the time the injury occurs to the making of the claim, when in fact it settles claims in just over two years on average.
He says the agency settles 97 per cent of medical negligence cases without going to court and admits liability once its expert witnesses advise this course of action. “We are not here to defend and deny, as is sometimes claimed. Our job is to ensure that people who have been injured receive the appropriate amount of compensation as quickly as the circumstances of their cases allow.”
The blame rests with plaintiff lawyers, he says. “We have to be sure we’re not overpaying claims but we also have to make sure we do not add to the suffering of a person who has been injured or that of their family. Ultimately, we are paying compensation with taxpayers’ money.
“We have a statutory responsibility to ensure the amount that we pay on behalf of the State is based on the seriousness of the injury and the level of care required by the person who has been injured.”
Proposals have been worked out to speed up the process. Legislation passed last year provided for the introduction of pre-action protocols to speed up litigation. These rules require both sides to make claims and respond within tight time limits, with areas of disagreement defined early in the process.
Mr Breen says the protocols could be “transformational” but the current political hiatus has delayed their introduction.
Michael Boylan, a partner at August Cullen Law and chairman of the Medical Injuries Alliance, believes a lot of "pious aspirations" have been floated, but there is "nothing concrete on the ground" to speed up cases.
“Families are still being put through needless stress in cases because liability is not admitted until the steps of the courts,” he says.
A case currently before the High Court, that of four-year-old Jude Miley, whose parents sued the State after he suffered brain damage when routine surgery was botched in Crumlin children's hospital, is typical of the adversarial and expensive process used to determine compensation awards.
Greville and Anne Louise Miley were kept in the dark about the error and had to resort to freedom of information to get their son's heavily redacted records, according to Ernest Cantillon, whose firm represents the family. The State at first denied liability, before admitting it last year.
Lawyers for the hospital have denied the claim that the family were not told about the error when it happened.
Meanwhile, the job of assessing exactly how much should be awarded for Jude’s future care is running into its third week before the court.
Mr Cantillon says the system “obfuscates and covers up with impunity” by throwing obstacles in the way of families seeking information. “That’s going on day in, day out.”
Mr Boylan says lawyers have a duty to “put their best foot forward” on behalf of clients and points to the many variables that can affect the value of an award. The difference between funding one or two carers over a lifetime, for example, can greatly affect the size of a settlement.
Another proposal for streamlining procedures, the introduction of periodic payment orders, was first suggested by High Court judges concerned that families of children with a catastrophic injury were enduring hardship after their original lump sum was spent. Why not make payments at regular intervals, adjusted to the child’s circumstances, rather than a single lump sum, they contended?
Legislation providing for such orders has been published but has yet to be enacted. The measure has gone ahead anyway on an ad-hoc basis, with 38 periodic payment orders made since 2010. Unfortunately, the rows over delays and costs have continued. Mr Breen claims lawyers are turning each order into a “mini-trial”.
In one case, legal costs of €1.3 million were sought in respect of a first periodic payment order of €3.75 million. For the second order of €1.75 million, €175,000 in costs were sought and for the third order for €1.95 million, €141,000 was sought.
Mr Boylan admits that “we’re arguing about what we shouldn’t be arguing about – crazy stuff”, but puts this down to the adversarial approach of the agency.
Mr Cantillon believes periodic payment orders will not yield enough money for patients over their lifetime, because the interest rate is to be tied to the cost of living rather than the cost of providing care.
Overall, the agency’s legal costs account for about 50-55 per cent of compensation awards. The cost of settling clinical claims has jumped from €55 million in 2010 to €70 million in 2014.
Mr Breen claims plaintiff lawyers are shunning the option of mediation because of the reduced legal costs involved. Only 15 out of 482 cases settled last year used mediation. “We encourage mediation as a way to resolve claims because we are acutely conscious that many families are genuinely distressed by the prospect of having to go to court,” he says. “Yet some lawyers remain implacably opposed to mediation and it’s not clear to us why that is.”
Mr Boylan counters that mediation is being offered “at the last possible moment” when the savings involved would be minimal. If there is agreement on anything, it is, as Mr Boylan opines, that “there has to be a better way”.
