In New Zealand, timely and appropriate compensation and support for injury as a result of medical negligence is the norm – we could learn from them, writes JAMES REILLY, Fine Gael's health spokesman
IF WE FAIL to reform the way compensation for medical mishaps is managed, we continue to tolerate a system where parents are forced to mortgage their homes to get justice for their children and perpetuate a bonanza for lawyers in taxpayers’ cash that could be far better spent.
Unfortunately, reform in this country, as applied to the health service, is not reform at all but mere tinkering at the edges. This is usually preceded by commissions, resulting in lengthy reports that are compiled at considerable cost to the taxpayer and then left to gather dust on a shelf.
As Fine Gael’s health spokesman I have a responsibility to put forward my party’s alternative plans. Our FairCare policy spells out how we can transform our health service. It includes the introduction of an approach based on “money-follows-the-patient”, so that hospitals are paid for how many patients they treat. Patients will no longer be seen as “costs” to the health service, but as sources of “income”.
This principle of putting patients first should be at the centre of our approach to all areas of the health service. It is difficult to see this principle in action when only recently, the State Claims Agency revealed that it will pay €60 million in response to medical negligence claims this year. About one-third of money, that’s €20 million, will go to lawyers straight out of the HSE’s budget.
Two weeks ago, six-year-old Keri Brett received a €4.5 million High Court settlement for “devastating injuries” at birth which mean that Keri, who has cerebral palsy, will require round-the-clock care for the rest of her life.
This case was compounded by the actions of the HSE which denied liability in 2007 despite an internal report from 2004 to the contrary, concluding mismanagement of the birth.
The reality is court cases like this are not isolated events. Last April’s €5.2 million settlement to Amanda Riordan and Keith Conroy for their six-year-old son, Leo, is another example.
It is absolutely unacceptable that after the trauma of having such a heartbreaking experience at birth, families are forced to endure years of anxiety, stress and financial strain to seek justice for their children. In the cases of Keri Brett and Leo Conroy, the legal fees involved probably came to another €1.5-€2 million.
At a time when the country is borrowing €400 million a week to stay afloat and when core frontline health services are under massive pressure, there has to be a better way.
There has to be a system which avoids the angst and risk of costly legal actions for the claimant while ensuring that the injured party receives adequate and timely compensation, as well as the relevant and necessary supports for them to continue to lead a normal life in so far as that is possible.
When you take into account that the State Claims Agency has claims totalling €560 million in the pipeline, the potential for savings from an improved system are major, possibly running into hundreds of millions of euro.
I believe such a system exists in New Zealand where everyone is entitled to timely and appropriate compensation and support for injury as a result of medical negligence/treatment.
In New Zealand, a Government-funded body, the Accident Compensation Corporation, is the means by which injured patients receive compensation instead of suing for damages.
While a causal link between treatment and injury is required, the “no fault” nature of the system means you can apply for assistance no matter how the injury occurred or who was at fault. Most claims can be processed within weeks and decisions must be made within nine months.
Claimants may request a review of a decision they are unhappy with and are entitled to a court appeal if they are still dissatisfied.
The New Zealand system puts the patient first by providing a straightforward claims process where people who have been injured though medical negligence/treatment can receive fair compensation within an acceptable time period.
The supports can include a wide range of services – from payment towards treatment, to help around the home, assistance with loss of income and rehabilitative programmes to help the injured party get back to work, or to live independently.
Central to the New Zealand model is breaking the link between proving liability and providing the injured patient with the support and resources they need.
The New Zealand-type model will take time to deliver and cannot happen overnight. In the meantime, there are some short-term steps that could be taken to cut legal costs.
For a start, some reforms recommended in the McCarthy Report could save €20 million for the State Claims Agency by better management of claims and using periodic payments instead of lump sums.
Second, the Government should take up the suggestion of my colleague, Deputy Leo Varadkar, and use one of its successful agencies – the Personal Injuries Assessment Board – which handles motor and workplace accident claims. This is based on a non-adversarial model.
If that model works for car accidents, surely it could work for hospital accidents.
In the longer term, I believe we should pilot a New Zealand- style “no-fault” system where there has been a catastrophic birth injury like cerebral palsy or where there has been a serious adverse reaction to a vaccine.
So instead of having to fight for support for six years through the courts and relying on wonderful charities, children like Keri and Leo could be assured of the best care possible from birth.
Last February in the Dáil, the Minister for Health and Children summed up the current system – “parents must litigate, a process that is traumatic and expensive”.
This is unacceptable and should not be tolerated any longer. We must change the way we deal with medical negligence cases so that the victim is at the centre of the process and is facilitated as soon as possible after the injury takes place with the necessary supports, while the longer term compensation and structure is put in place to allow them lead as near a normal life as possible and to reach their full potential.
We cannot continue to stand idly by while up to one-third of settlements go to lawyers instead of the injured party.
- Dr James Reilly is Fine Gael spokesman on health