Despite massive awards, the adversarial system benefits no one, writes David Labanyi
When seven-year-old Seamus Dwyer was awarded €4 million by the High Court last week it was the latest multimillion euro obstetrics settlement.
Profoundly intellectually and physically disabled, Seamus has cerebral palsy and is entirely dependent on others.
From the outside the outcome appears fair - a massive award for massive injury. But all parties to obstetric medico-legal cases - lawyers, parents, insurers and consultants - are unhappy with the current adversarial system.
And the decision by the Medical Defence Union (MDU) to effectively withdraw cover from Irish-based consultants has further complicated the situation. The MDU, which decided not to continue insuring doctors due to the rising cost of claims, has historic liabilities estimated at €400 million.
Responsibility for these claims lies with the State Claims Agency which manages the Clinical Indemnity Scheme. It has expressed concern at the size of obstetrics settlements facing the State, using as an example a recent €4.7 million award and €840,000 in legal fees for the plaintiff.
Michael Boylan, the solicitor who represented the Dwyer family, says this case provides an example of the flaws with how medico-legal cases are handled.
"In Seamus's case we had a farcical situation where the two defendants, the consultant and the health board, were separately insured and could not decide who was at fault. So they went round in circles blaming each other."
It took three years before the case came to court where the consultant obstetrician attached to Portiuncula Hospital in Co Galway where Seamus was born, conceded liability.
According to Boylan, this adversarial approach by insurers and consultants is prolonging cases and inflating legal costs. "What is happening is cases that should be settled long before they go to trial are being fought."
Dr John Hickey, chief executive of the Medical Protection Society (MPS), which provides insurance for Irish consultants, disagrees. "Ireland is the most expensive jurisdiction for us in that respect and we are greatly troubled by the lack of transparency around legal fees," he says.
Hickey says that while frequency of claims in Ireland has fallen over recent years to a rate similar to the UK at 175 claims a year per thousand consultants, the severity of the claims is a concern.
He adds that "cases are being brought which are less about negligence and more about providing for a brain-injured child". This is because Ireland has no system to provide support for brain-injured children.
"If you take 100 claims we don't make a payment in about 50 of them because there has been no negligence. We pay out in about 47 claims and about three go to trial," he says.
"Of the 47 we pay out, the majority we pay out because there is clear evidence of negligence on the part of the treating doctor. But there is a substantial minority where we don't think the doctor has been negligent but it is going to be very difficult to prove that is the case," Hickey says.
He says the absence of supports for parents of brain-injured children where no medical negligence has taken place "has to raise a question mark in any right thinking person's mind. We believe a ringfenced no-fault compensation scheme is the most appropriate."
The chief executive of the Irish Hospital Consultants Association, Finbarr Fitzpatrick, agrees the absence of a State compensation scheme is resulting in opportunistic cases.
"If parents have a child with cerebral palsy and they want to get a fund together to look after it 24 hours a day, the only way is to sue the doctor and the hospital. In some instances you will find that a settlement has been reached without a statement of liability."
He says three babies in every thousand born will have cerebral palsy leading to roughly 150 cases a year in Ireland. But this view of a honey pot for brain-injured babies through a legal case is strongly contested by parents.
"It is a fallacy to suggest cases are being taken on a whim or vexatious grounds. Absolute and utter rubbish. In 20 years of working on these types of cases the opposite is the case," says Boylan, who specialises in this area.
Boylan said the collegiality of consultants is omnipresent and requires him to seek expert opinions from outside the State.
"There are incredibly powerful vested interests involved. I have to go outside the State and get expert reports. In two cases that we successfully brought to conclusion, Irish paediatricians told the families that the child's cerebral palsy was not related to intra partum events but were pre-natal and pre-dated labour. In fact, during the case, liability was admitted.
"But the two families nearly abandoned the cases, erroneously, on the basis of what they had been told."
Boylan feels that the current adversarial system suits the insurers and consultants. "I honestly believe it is the case that insurers and the State are protected by the current system. Despite what they say, it suits them. Any change that removes the requirement to prove fault will increase many-fold the cost of such claims to the State."
He says statistics suggest that 15-30 of brain-injured babies born in Ireland each year can trace their cerebral palsy to negligent obstetric management but this is not reflected in the number of claims.
Ernest Cantillon, a Cork-based solicitor who acts for families in medical malpractice, also disagrees with the suggestion that parents take opportunistic claims.
"You should not infer that just because a case is settled 'without an admission of liability' it does not mean that there was no liability. The MPS, the State and MDU would not pay out a penny unless there was proven negligence. A settlement 'without an admission of liability' is a face-saving exercise. A lot of things go wrong in hospitals. But people consider the process so risky and stressful that the number who will sue is quite small relative to the number of incidents."
Cantillon is also frustrated by what he sees as the ongoing collegiality among consultants. "If you ask an Irish-based consultant for a report on the work of another, you will either get a misleading report or they will refuse."
Concerned by the rising cost of claims, the former minister for health Micheál Martin set up an expert group to consider the introduction of a no-fault compensation scheme.
However, late last year the Tánaiste and Minister for Health Mary Harney quietly ended its work when she told the Dáil any such scheme faced constitutional difficulties.
The expert group was on the verge of producing recommendations and its chairman, Dr Peter McKenna, former master of the Rotunda, said it would be a great loss if its work went unused.
"We were examining alternatives to the existing adversarial system," he says. "One of the goals was that if we could reduce the costs, it was possible more money would find its way to the people who needed it.
"A clear impression I have from the parents who were members of the group is that services for brain-injured children are very difficult to access and insufficient."