by Mary Hough September-20-2024 in Healthcare Law

 

In this, the second article in the series of “Embracing Change” published following the Conference ‘Embracing Change: Working Better Together’ which we hosted in June 2024 [Link here - Hayes Solicitors LLP, Dublin, Ireland - Law Firm. Hayes solicitors host conference of leading experts to discuss proposals for the reform of clinical litigation in Ireland (hayes-solicitors.ie)] we welcome the publication of the report of the Interdepartmental Working Group chaired by Professor Rhona Mahony. We are pleased to see that the report endorses changes previously recommended by the Working Group chaired by Meenan J, which we in Hayes solicitors LLP have been advocating for and support. It is our hope that the recommendations made by the Interdepartmental Group chaired by Professor Mahony and her endorsement of many of the recommendations made by Meenan J will add an impetus to bring about much needed positive change in health related claims.   

  

 

Embracing Change - Interdepartmental Group Makes Welcome Recommendations

The Minister for Health has published the report of the Interdepartmental Working Group on the Rising Cost of Health-Related Claims chaired by Professor Rhona Mahony. The Group has identified six strategic priorities with the stated aim of reducing the requirement for litigation in healthcare and to improve the litigation process for those taking this path. The six strategic priorities were identified by the Group as:-

  1. Care for babies born with neonatal encephalopathy and other maternity initiatives.
  2. Preventing adverse events: Strategy, People, Resources.
  3. Enhanced response when harm occurs.
  4. Learning from adverse events, capturing data and promoting key research.
  5. Faster and more efficient resolution of claims.
  6. Standardised approach to mass claims.

 

At the heart of the report of the Interdepartmental Working Group is an understanding of the human cost when harm occurs in the provision of healthcare. The Group recognises that no patient wishes to find themselves seeking compensation for harm that has occurred and that no clinician or healthcare practitioner wants to cause harm. The Group identifies that the fundamental solution is rooted in the prevention of clinical harm arising from unanticipated adverse events and enhanced care for those adversely affected by such harm. 

 

Each of the six strategic priorities identified by the Group has a corresponding set of recommendations. This article focuses on the recommendations made for the faster and more efficient resolution of claims, something for which we have long advocated. The Group has recommended the implementation without delay of recommendations made in a number of previous reports, together with some additional recommendations, advocating changes and improvements to the management of clinical negligence claims. These include recommendations of -

  1. The introduction of a Pre-Action Protocol with sanctions for a party who fails to adhere to the protocol, as recommended in the Meenan Report.
  2. The facilitation of earlier mediation, where possible and agreeable to both parties.
  3. Amendments to case management Rules of Court, to include a stipulation that equivalent rules apply to both sides, and that joint expert meetings (hot-tubbing) should be required to take place.
  4. The establishment of a dedicated Court list with judges in place with specialist knowledge of medical negligence litigation, or other appropriate measures to facilitate the earlier hearing of medical negligence cases.

 

The Group recommends that a panel of medical expert witnesses should be developed. It also recommends that a medical records system, with unique identifiers, be put in place to facilitate better and more timely provision of records and that a system be put in place so that a patient or their solicitor can view their electronic medical records. In addition, the Group recommends that a training programme for hospital staff should be put in place regarding best practice around medical records.

 

The Group has also recommended that the facility for Courts to award Periodic Payment Order should be resumed and that the personal injury discount rate, also known as the real rate of return, should be reviewed at regular intervals by the Minister for Justice. Progress has recently been made in relation to both Periodic Payment Orders and the personal injury discount rate as discussed in the first article of this series ‘Embracing Change’ [Link to article here - Hayes Solicitors LLP, Dublin, Ireland - Law Firm. Embracing Change - Expert Group makes welcome recommendations to assist the Minister in setting an appropriate discount rate (hayes-solicitors.ie).]

 

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About the Author

Mary Hough
Mary Hough

Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.