I think that it is almost universally accepted by all that if you had a wrong committed, that the person wronged should be appropriately compensated. In this context, if one is injured as a consequence of medical negligence, all right thinking people believe that the wrongdoer (Doctor) should compensate the injured Plaintiff (patient). Our laws and procedures are complex. The law in relation to medical negligence is perhaps even more complex.
When we are consulted in relation to a medical claim and a person is considering bringing a claim, we equate the journey they are about to embark upon as akin to a jockey saddling up in the ring before the commencement of the Grand National. It is a daunting task indeed. Not every Solicitor or Barrister is equipped to deal with medical negligence cases.
The costs associated with the mounting of a medical negligence action are very significant. There are two types of costs incurred in bringing an action. One is the actual outlay that is incurred in bringing a case on for trial. The other is the salaries and expenses that are associated with running the practices of the Solicitors who bring the action. In terms of outlay for reports and securing the attendance of witnesses at a medical negligence action, it would be realistic to expect that one might incur outlay in a significant case of about €100,000.
There then is the cost of running a Solicitor’s practice during the three to six years that it will take for a case to come on for trial from commencement. In that intervening period, the partners in the firm will not be paid. Their staff, of course, will have to be paid and the rent, rates and insurance and other administrative costs will have to be paid. There are not many firms that can withstand that type of financial pressure. There are very few Plaintiffs or victims who can afford to fund a medical negligence claim. In reality, claims are funded by the commercial decision taken by the lawyers to run the case. Some are motivated by the financial reward and some are motivated by the desire to achieve justice and some are motivated by a mixture of both. One way or the other, however, irrespective of the motives, one cannot run such an action unless there is at least some reward for doing so.
What then is the equality of arms that exists between the opposing sides in such a situation? At the outset, it is important to look at the relationship and how it commenced between a doctor and a patient. A patient goes to a doctor and places his/her total confidence and trust in the hands of the doctor. He/she is dependent on the doctor for the saving of their life. Thus, the doctor can exercise considerable power over the patient and the patient is aware of this. Thus, when the situation goes wrong, and the relationship breaks down, there is a sense of hurt and a sense of powerlessness. That sense of hurt is often compounded by the failure of the doctor or hospital to admit they have done wrong or admit that there is a problem. That hurt is further compounded by the “defend and deny” approach that is adopted if legal proceedings are embarked upon. There is in my experience high funded Risk Management Departments that rarely conclude that there were culpable errors on the part of their staff and seek to exculpate at every twist and turn what has happened. A patient who has thus been wronged and feels let down, is left searching around for an alternative remedy, and the only remedy they often opt for is the legal route. They then have a choice of instructing a Legal Aid Solicitor, or to opt for a specialised private Solicitor. It is clear from the available figures that legal aid is not being made available for the overwhelming majority of medical negligence cases. At best, 10% are getting legal aid.
This is not due to the fact that the hospitals are only injuring rich people but is due to the inadequacy of the Legal Aid system. I hasten to add that I make no criticism whatsoever of the Legal Aid Solicitors who operate within the medical negligence unit of the Legal Aid Board, but rather I criticise the system under and by virtue of which they operate. The reality is that Lawyers are provided the means of access to justice.
Apart from the benefit to the individual victim that compensation may bring, I think it is universally recognised that benefit to society generally in that such actions:
(a) Hold the wrongdoer to account,
(b) Cause hospitals and doctors to review their procedures and protocols,
(c) Prevent further similar tragedies.
Irish society generally has a strong sense of justice and likes to see a right being wronged and the system, such as it is, currently achieves that. However, unless the lawyers are properly funded, this will not be maintained.
The situation from the Defendant wrongdoer’s side is in stark contrast.
There is a panoply of supports available for the doctor or hospital who has caused the damage. In the first instance, they have the support of their colleagues and peers. They have the support of the Risk Management Department. They have the support of the State Claims Agency. The State Claims Agency then have a panel of lawyers that can support them. In contrast to the victim’s lawyers, the taxpayer funds the payment of salaries to the doctors, to the Risk Managers, to the State Claims Agency, to the panel Solicitor and for all the outlay that is going to be incurred. The State, of course, must operate within the framework of the Constitution and the European Convention on Human Rights. The State Claims Agency is an organ of the State for the purposes of the European Convention on Human Rights Act 2003 and by virtue of Section 3 is required to perform its functions in a manner consistent with the State’s obligations – including ensuring that the State is compliant with Article 6.1 which is the right to a fair hearing. A right to a fair hearing must surely ensure that there is an equality of arms between the parties and that the compensation for the wrongdoing is adequate and appropriate. How compatible is the funding of the State Claims Agency with Article 6? It is difficult to reconcile the State’s obligation to ensure a fair hearing with the manner in which it funds the victims of medical negligence or indeed with the Statutory objective of the SCA, which is “to ensure that the State’s liabilities in relation to personal injury and property damage claims, and the expenses of the SCA in relation to their management, are contained at the lowest achievable level”.
I am sure that all of you would agree that if you were injured catastrophically, you would like to ensure that you were represented by a competent firm and that you were achieving the maximum possible damages for the wrong that was done to you. Now, the maximum possible damage is probably the other end of the spectrum but certainly you would like to achieve reasonable compensation but certainly you would not like to be achieving damages “at the lowest achievable level”.
Massive financial and human resources are being utilised by the State to, as the State Claim’s Agency website says: “robustly defend” medical negligence cases. On the other hand, very little of the State’s resources are being expended through Legal Aid or through adequate costs being provided to assist Plaintiffs. On the one hand you have the State organ, the HSE, injuring a party and I hasten to add that I do not suggest they are doing it intentionally but it is a State organ. You then have the victim left to flounder around to get access to justice, yet on the other hand the State wrongdoer is providing massive resources to “robustly defend” claims. I question the compatibility of this approach with the State’s obligations, either constitutionally or under the Convention, but I also question it from a societal point of view. It is easy to bash lawyers and say we do not want them to be paid, but I think that when you stand back and analyse the situation that society does want the victims to be paid and the only way they can be paid is by adequately funding their lawyers.
If a patient is successful in his claim, he is entitled to have his costs, in theory, paid for by the Defendant. When the case is concluded the patient/Plaintiff will draw up, through his Solicitor, a bill of costs, which is then presented to the other side. If this cannot be agreed with the other side, one has to submit to the adjudication process which is known as “Taxation” or which is another word for “measuring”. The measurement task of ascertaining what is due to the Plaintiff is presently undertaken by the office of the Taxing Master (though this is due to change under forthcoming legislation). These is one practising Taxing Master in Ireland at present. It can take years for the Taxation process to be concluded. I had one such case that settled in July 2014. I have a Taxation date for this case for July of this year. This is not sustainable for the period of time when within which Costs are awaited, teams of Lawyers working for the victim, secretarial staff, back up administration staff, reception staff will all have to be paid week in week out. Who pays them? The victims cannot afford it. The reality is that the Lawyers are paying them. Meanwhile the State are funding the salaries of all of the staff working in the SCA and in the various Risk Departments.
I think that it is popular to bash Lawyers and cheer when Lawyers’ fees are reduced but if the medical negligence lawyers who handle these cases at the present time pull out of these cases, it is going to cost society, I believe, a lot more in the long term.
Karen Kearney, Medical Negligence Solicitor, Cantillons Solicitors
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or firstname.lastname@example.org if you would like more information.
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