January-27-2015 in Healthcare Law, Litigation & Dispute Resolution
The Medical Protection Society (MPS) has mounted a strong campaign for reform of the Irish legal system in relation to clinical (medical) negligence claims.
The rising cost of claims
At the end of November 2014, the MPS published a paper in which it highlighted the rising legal costs which it blames for a 90% increase in indemnity cover costs forConsultants over the last two years. It states that this is due to large increases in both the rate at which private hospitals are being sued and the average size of those claims. The MPS notes that legal fees in Ireland are higher than in any of the other 40 countries in which it operates worldwide and it puts this down to inefficiency in the Irish legal system and a lack of transparency in legal costs.
The MPS, a not-for-profit organisation, has had to raise its subscription costs by up to 60% for private Consultants in the past year due to these increased legal fees.
Impact
In an article in The Irish Times on 3 January 2015, John Tiernan, Director of Member Engagement for MPS stated, “The cost of medical negligence claims is paid ultimately by patients”. This is down to claims culture risking the sustainability of certain areas of private practice, which in turn can cause a shift in workload to the already strained public sector health services. A significant number of regional hospitals across the country lack many specialist resources, meaning that private facilities are required to meet the needs of such patients. Any further pressure on the private sector may cause practitioners to rethink going it alone leading to a further reduction of these specialist facilities.
The MPS highlights that the lengthy and expensive Irish legal process can cause unforeseen delays for plaintiffs with valid claims, meaning they may not receive early closure on a case causing them financial hardship while they wait for compensation.
The current cost of clinical negligence claims is also a significant burden on the public purse. The State Claims Agency (SCA) comments in the National Treasury Management Agency annual report, “At the end of 2013 the SCA had 3,061 clinical claims under management, with an estimated liability of €1 billion compared with 2,652 active claims at the end of 2012”.
Recommendations
Pre-action protocols in England encourage a high degree of cooperation between both sides to the claim and reinforce the practice by imposing penalties for non-compliance. The outcome - most claims are resolved before proceedings formally issue. Comparative data from the MPS shows that close to 70% of claims were resolved during the pre-action phase in England compared with just over 20% in Ireland.
The MPS has recommended steps to reform the current system of clinical negligence law in Ireland including:
- Limiting general damages
- Limiting the damages given for loss of future earnings and future care costs
- Introducing of a Bill that defines the tort of clinical negligence and requires that a tort is established only by proof of both breach of duty and a cause of injury
- Introducing an ultimate limitation period of ten years.
Conclusions
To help develop a better, fairer system in Ireland, the MPS has considered its experiences within other countries and how we can learn from these. The rising cost to private practitioners is rapidly becoming unsustainable, which may ultimately encourage many doctors to travel abroad to work.
The MPS has based its research on the tort reforms in Australia and the US where there have been many advances. They believe that if implemented these changes will cause a reduction in the frequency and severity of claims and more importantly make the system quicker, fairer and more efficient.
The MPS believes that true reform can only come about with government support. Without it, tort reform is unlikely!
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