The group, chaired by Professor Rhona Mahony, points out that more than half the total annual costs of healthcare litigation in Ireland are associated with claims for catastrophic injuries that account for only 2% of claims each year.
‘Necessary redress’
The report stresses that litigation remains “a necessary and important redress” for patients who are harmed because of clinical errors or poor care.
It adds, however, that the present litigation system in Ireland is adversarial, while claims can take several years to resolve, adding to distress for claimants and healthcare workers alike. The report also points out that the costs of litigation draw resources away from healthcare provision.
Many of the group’s recommendations focus on preventing clinical harm arising from unanticipated events and improving care for those affected by them, which it describes as “the fundamental solution”.
PAPs
Among the recommendations aimed at reducing the adversarial nature of litigation in such cases is the implementation “without delay” of pre-action protocols (PAPs), as recommended in previous reports on the issue.
The report says that PAPs would allow the disclosure of medical records earlier than is currently the case, while also allowing the parties the chance to settle the dispute or seek alternative dispute-resolution (ADR) methods.
The group calls for sanctions for any party that fails to adhere to the PAP.
It recommends that the State should continue to use various forms of ADR – including mediation, ex gratia or compensation schemes, and tribunals – as appropriate,
Dedicated court list
The report also recommends changes to case-management rules to include a stipulation that equivalent rules apply to both sides, and that joint expert meetings should be required to take place.
It also calls for a dedicated court list, heard by judges with specialist knowledge of medical-negligence litigation.
To address difficulties in obtaining expert-witness reports, the group recommends that an independent panel of medical expert witnesses should be developed, initially on a voluntary basis, overseen by an existing regulatory body with appropriate expertise.
The report recommends the resumption of periodic payments orders (PPOs) by the courts. PPOs are an alternative to lump-sum payments for catastrophically injured people that provide for an ongoing annual payment over the lifetime of a claimant.
‘Human cost’ of litigation
Minister for Health Stephen Donnelly welcomed the report, adding that he would be setting up a group to ensure that the recommendations were implemented “without delay”.
“I am particularly pleased that the group, along with examining the financial costs of claims, placed a strong emphasis on the human cost of litigation,” the minister said.
“The report acknowledges the harm that is central to the decision to litigate and ensured that this was central to the considerations of the group,” he stated.
'Final pieces of evidence'
The Medical Protection Society (MPS), which provides protection and support on legal and ethical issues for more than 16,000 healthcare professionals in Ireland, welcomed the report.
“We are pleased to see that the findings by Dr Rhona Mahony and colleagues make the case for the urgent implementation of pre-action protocols ever more pressing,” said Dr Rob Hendry (MPS medical director).
He said that the “protracted and costly” nature of the claims process in Ireland stemmed from the lack of mechanisms, such as PAPs or case management, that would allow for early resolution.
“Pre-action protocols are widely accepted as needed in Ireland and the Government has committed to their introduction; however, we are still waiting for the necessary regulations to be introduced,” he stated.
Dr Hendry concluded that the hoped that the report's release would provide "the final pieces of evidence to help get reform delivered without further delay”.