March-30-2016 in Healthcare Law, Litigation & Dispute Resolution
Clinical negligence actions and the pre-action protocol have now been put on a statutory footing in the Legal Services Regulation Act 2015 (LSR Act). This is a welcome change for both plaintiff and defence lawyers instructed in clinical negligence actions.
It means that “clinical negligence actions” will be inserted into the Civil Liability and Courts Act 2004. “Clinical negligence” is defined as anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death. A “clinical negligence action” means an action for the recovery of damages. It is brought by a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence. The defendant is the health service provider alleged to have committed the act or omission giving rise to liability.
What is a health service and who does it include?
The LSR Act states that a health service includes carrying out a clinical investigation, diagnosis, procedure, treatment or research, the provision of clinical advice or information, and the provision of clinical care. The health service providers are listed in the Act and include a person whose name is on the following:
(a) The register of medical practitioners
(b) A register maintained by the Dental Council
(c) A register maintained by the Optical Registration Board
(d) A register set up under section 13 (1) of the Pharmacy Act 2007
(e) A register maintained under section 46 of the Nurses and Midwives Act 2011
(f) A register maintained by any health and social care profession which has been designated for the purposes of the Health and Social Care Professionals Act 2005 and which the Minister has prescribed by regulations.
When does the pre-action protocol apply?
The pre-action protocol will apply to all clinical negligence actions prior to the commencement of proceedings. No specific date has yet been set for introduction of the protocol.
The terms of the pre-action protocol
The Minister for Justice must make regulations specifying the terms of the pre-action protocol. Before making such regulations, the Minister is required to consult with the Minister for Health and various bodies including State Claims Agency.
The LSR Act provides that the terms of the pre-action protocol specified by the regulations shall include provisions relating to: the disclosure of medical records; notifications of enquiries into, and allegations of, possible clinical negligence and responses to such notifications; timeframes for compliance; disclosure of relevant material; and agreements to submit issues for resolution other than by a court.
We do not know what the terms of the pre-action protocol will be. It is likely that its terms will be similar to those proposed in the draft scheme prepared by the Working Group on Medical Negligence in Ireland along with the UK model provided for under the UK Civil Procedure Rules.
The pre-action protocol in the UK includes the following stages:
- Letter of claim - the patient must serve a letter of claim on the healthcare provider which must include a summary of the facts grounding the claim, details of the basis upon which the claim is being made, and what reliefs the plaintiff is seeking including details of financial loss.
- Letter of response - the healthcare provider must answer the claim within a maximum period of four months. The response must clearly identify the accepted and disputed parts of the claim and the basis for any dispute.
- Essential documents - both parties must provide a list of the documents on which they intend to rely. If requested by the other party, they should provide copies of the listed documents.
- Alternative dispute resolution – parties must consider using a form of alternative dispute resolution which is reasonable and proportionate - including mediation, arbitration, offer of open discussion or negotiation.
Discovery applications during the pre-action stage are not common in the UK as the documentation is usually provided by both parties which saves time and costs. It is hoped that we will have the same result in Ireland to reduce the time and costs involved in the current protracted discovery process and court applications.
Will sanctions apply for non-compliance?
There will be penalties for non-compliance. There are four sanctions set out in the LSR Act. The most severe sanction is an order that a party who has not complied with a requirement of the pre-action protocol pay the full costs or part of the costs of the other party or parties. The other sanctions include a stay on the action until parties comply with the protocol, an order depriving the plaintiff of interest on an award of damages, and an order compelling the defendant to pay interest on an award of damages.
Limitation periods
There will be a major change to the statute of limitations for clinical negligence actions from two years to three years by way of an amendment to section 3 (1)(a) of the Statute of Limitations (Amendment) Act 1991. The three year period does not affect actions where the patient is deceased or has ceased to be under a disability and these cases will continue to be a two year statute of limitations. The new section will not apply where the date of accrual of the cause of action or the date of knowledge of the person is before the commencement of section 3 (1)(a).
In England and Wales, there is a statutory limitation period of three years. This has been successful to date in providing the necessary extra time for the parties to comply with the pre-action protocol and limitation periods. The change to the statute of limitations in Ireland will provide the extra time for parties to comply with the protocol while keeping within the limitation periods.
New statutory footing for an apology
The LSR Act provides a statutory footing for an apology made in a clinical negligence action. The Act provides that an apology shall not constitute an express or implied admission of fault or liability and shall not, despite any provision to the contrary in any contract of insurance and despite any other enactment, invalidate or otherwise affect any insurance coverage.
Until now, there has been no statutory protection for an apology made by a clinician in a clinical negligence action. The LRS Act does not define an “apology”. The General Scheme of Provisions on Open Disclosure defines an apology as “an expression of regret”. It is likely that similar wording will be used for the pre-action protocol and one would hope that there is a uniform approach to the definition of an apology to ensure that there is clarity for health service providers.
Offers of settlement
Section 17 of the Civil Liability and Courts Act 2004 introduced letters of offer by the parties to a personal injuries/clinical negligence action which had costs penalties. A new Section 17A will be included for the pre-action stage to expand the terms for the “Section 17” offer and will act as a deterrent should either party not accept early reasonable offers of settlement.
The court will be allowed to take into account, when making a costs order, the terms of the offer of settlement and reasonableness of the conduct of the party by whom the offer was made in making the offer. Section 17A is similar to the costs penalties for a tender or lodgement made when proceedings have issued.
Conclusion
Research from the UK has revealed that the introduction of the pre-action protocol has resulted in a decrease in claims proceeding to trial. Between 2005 and 2010, 67% of UK cases were resolved in the pre-action stage. The pre-action protocol will provide a much needed change to the procedures for clinical negligence actions in Ireland with a focus on early resolution and filtering of claims pre-proceedings. This in turn should reduce the costs of litigation and reduce court time.
The consultation process on the terms of the pre-action protocol is under way and it is hoped that the pre-action protocol will be finalised soon so that the protocol can commence for clinical negligence actions.
A version of this article first appeared in the Spring 2016 edition of Parchment, the Dublin Solicitors' Bar Association magazine.
Back to Full News