At present medical negligence cases are managed by the Court in the same manner as other Personal Injury cases*. However, in 2010 the High Court Working Group on Medical Negligence and Periodic Payments proposed the introduction of pre-action protocols and case management, similar to those in operation in the UK, in a bid to reduce costs and delays. The Legislative Programme published by the Government in autumn 2014 indicates that the Heads of Bill for this legislation is due in 2015.
What are the proposed reforms?
Pre-action protocols encourage a full exchange of information, to ensure that parties have the clearest possible view of each other’s position at an early stage to enable parties to agree a settlement before commencement of proceedings and, thereby, avoid litigation. The protocols provide for a letter of claim, response, exchange of essential documentation, negotiation, alternative dispute resolution and cost penalties. For pre-action protocols to be workable a corresponding extension to the Statute of Limitations and/or stopping of the clock at the pre-action stage (similar to the Injuries Board) would be required.
Case management procedures entail prescriptive rules regarding the running of a split liability / quantum trial, cost containment measures (for example, limiting the number of experts) and new rules on offers to settle.
The High Court Working Group also recommended the introduction of periodic payment orders (PPOs). A PPO is a structured settlement, whereby the Plaintiff receives index-linked damages periodically to meet the Plaintiff’s needs as they arise over their lifetime. PPOs are advocated because there was a fear that persons awarded a lump sum may run out of funds. Also, there was concern raised by the insurance industry and by the State Claims Agency that if a Plaintiff died his next-of-kin (sometimes the wrongdoer) could inherit the lump sum. PPOs, however, are not without their own difficulties. The most significant difficulty at the present time is the absence of under-pinning legislation. Such PPOs that are awarded at the present time are done on an ad hoc informal basis.
The advantages / disadvantages of the proposed reforms
Pre-action protocols and case management, once in place, aim to decrease Court time and costs; however, the experience in Britain has been that the benefits are limited. An increasing number of cases settle at the pre-litigation stage. However, as regards costs saving, it seems that the decreased costs have been largely confined to smaller, lower-value cases.
The benefits to the administration of justice and the public in affording public vindication for victims (and their families) – and the public accountability of health professionals and systems in exposing unacceptable medical practices and governance issues – should not be jettisoned in favour of merely obtaining faster systems.
Medical negligence cases have resulted in greater safety procedures being put in place in hospitals (including written protocols) and have raised the tide in favour of patients. The danger is that this may not occur if justice is administered behind closed doors and if those deficiencies are not highlighted in public.
Medical negligence costs – but if it results in a safer healthcare system the cost is worth it.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.