There are a number of reforms on the horizon which may make it easier for victims of medical negligence to get justice.
1. Pre-action protocol:
There are about to be changes to the Superior Court Rules which may see an end to the inordinate delays which occur in medical negligence cases. At the end of December 2015, legislation was brought in in relation to the provision of legal services. Part of that deals with how medical negligence cases are going to be conducted. The Minister for Justice will be required to hold a consultation process with the Minister for Health, the State Claims Agency, the Law Society, the Bar Council, any bodies involved in the training of health professionals bodies and, most importantly, bodies who represent the interests of patients. If there is a proper multi-disciplinary approach and ministerial goodwill, we at Cantillons believe this is a positive development and may change the landscape of medical negligence cases going forward.
After the consultation process, the Minister will then devise a pre-action protocol which will comprise of steps that have to be taken before you can issue legal proceedings. There is no pre-action protocol in place as yet but if we look to the UK and adopt a similar model, what will happen is that a Solicitor would investigate a potential claim on behalf of their Client and in so doing would write a detailed letter of claim to the potential Defendant. The letter will not only identify the areas of negligence but also the medical expert’s reasons why he or she believes the potential Defendant to be at fault. On receipt of that letter of claim, the potential Defendant will have a specified period of time (in the UK, 3 months) within which to respond and confirm whether they admit liability or not. If the potential Defendant does not admit liability, then the patient can proceed to issue proceedings. If they are successful in their case, there are, in the UK, costs penalties to the potential Defendant for putting the patient through the litigation process having denied liability from the start.
Hopefully, the pre-action protocol will also follow the UK model whereby, if proceedings have to be issued, they are case managed by a Judge and a timetable is implemented which the parties have to adhere to in respect of the various procedural hurdles. We at Cantillons cautiously welcome the introduction of the pre-action protocol as hopefully it will avoid the excessive delays that we have had in the past. The devil however will be in the detail.
Currently, if a child or adult is catastrophically injured, their claim can only be settled by way of a lump sum.
In 2010, we were informed that the Government intended to introduce legislation for Periodical Payments Orders (PPOs) whereby a patient would receive a specified lump sum to enable them buy a house, car, equipment etc. Thereafter, an Order would be made granting them a specified annual payment to cover their care, therapies, treatments etc. That annual amount would run for their lifetime and would remove the element of uncertainty and everyone would be safe in the knowledge that the patient would be provided with the proper package of care for life. In contrast, with the lump sum awards currently in place, there is always the worry that the money would run out.
However, a problem has occurred in that the draft legislation in this regard has gone against the advice of a Judicial Working Group which was set up to advise on the introduction of PPOs. The Group unanimously recommended that a pre-requisite for the introduction of PPOs was that they be index linked to the level of earnings of care personnel and changes in the costs of medical and assisted aids and appliances. If that index is applied, then we, as Practitioners, would be safe in the knowledge that catastrophically injured patients would be able to afford the cost of treatment and care into the future. However, under the draft legislation, the Minister has stated that the indices she intends to use is the Irish Harmonised Index of Consumer Prices (“HICP”) as published by the Central Statistics Office. There is evidence to show that in the long term, wages will inevitably rise at a rate greater than the increase in consumer prices. The Society for Actuaries has accepted that earnings will increase at a rate, on average, of 1.5% per annum greater than the general consumer price. In the circumstances, this therefore is going to leave catastrophically injured clients and their families with a problem of how they are going to bridge the gap between what is awarded by way PPOs and the reality of getting a Carer who commands a greater salary than what is provided for under the PPO. This is a somewhat complex area but in short, the following example might illustrate same. If a person is given €100.00 per annum to pay their Carers, if it is linked to HICP, it might rise to €102.00 per annum. If however the wage inflation is running at 10% per annum, they will be short €8.00 per annum. The figures are of course far greater than that in that care costs can come in at €400,000.00 per annum and thus, a loss of 10% could equate to some €40,000.00.
If the HICP index is introduced, it will affect the most vulnerable because their money may well run out because of the effects of inflation. This is a silly penny pinching approach. In the overall context, the cost to the State is not significant but the cost to the injured person could be the difference between being able to pay a Carer to get them up in the morning or not being able to pay for such a service. We at Cantillons have written to Minister Francis Fitzgerald as have other practitioners.
3. Open Disclosure Provision/Duty of Candour:
The new Rules and Regulations as set out above are welcome but they are to do with the process and how the compensation is paid. A real fundamental change to the culture within the HSE is within our grasp which, if there is political goodwill, would minimise the worry and distress to victims and their families.
Why is a statutory duty required? There have been a number of policies/ethical guidelines in existence historically which required health care professionals to be open and honest when an error occurs. There has never been any desire to tell us what they know, or more importantly, tell the patient. If they were legally obliged to be candid, a significant number of steps would be taken out of the equation and the cost and distress to the families would be significantly reduced. Currently, healthcare professionals should acknowledge that the event happened, explain how it happened, give an apology if appropriate and give assurances that lessons have been learned to minimise the chance of it happing again. This does happen! Indeed, if Clients insist on an explanation they are often misled. We at Cantillons have not seen any case whereby a client has come into and told us that they met with the hospital and they were dealt with openly and honestly and they received an apology.
Under the “Open Disclosure Provisions” which have been published and will be implemented, there is no positive requirement compelling the health care professional to make a disclosure. In the UK, if a healthcare professional does not make a disclosure there could be criminal sanctions. Instead, under the “Open Disclosure Provisions” the healthcare professionals who comply with their professional obligations and the obligations of the HSE Open Disclosure Guidelines are going to be protected as any disclosure/apology made is not going to be admissible in any civil proceedings. To legislate to provide for an apology and to expressly, within that legislation, provide that any apology/disclosure made or the paperwork generated in the investigation of the adverse event is not admissible in civil proceedings, whether by discovery or otherwise, is demeaning of the disclosure/apology. That is insulting to victims of medical negligence and will not assist the process in any way. It has the potential to make the process more entrenched and hurtful for the most vulnerable members of our society people whist providing a shield to our most privileged.
The Greek philosopher Sophocles stated, "All men make mistakes, but a good man yields when he knows his course is wrong and repairs the evil. The only crime is pride."
By Pat Daly, Medical Negligence Solicitor, Cantillons Solicitors
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 or any award or settlement.