Medical Protection is calling for the urgent implementation of pre-action protocols to speed up clinical negligence claims, as its new report reveals that slow processes are affecting patients’ and doctors’ mental wellbeing and racking up legal costs that are among the highest in the world.

The Medical Protection report – The human and financial cost of clinical negligence claims - says a clinical negligence claim in Ireland takes 1462 days on average to resolve, which is 14% longer than in South Africa (1,279 days) and 56% longer than in Hong Kong (940 days), the UK (939 days) and Singapore (938 days).

It says patients and doctors in Ireland are dragged through what can be a brutal process, for longer than necessary, and patients are having to wait longer to receive compensation.

Research involving 200 doctors in Ireland who have faced a clinical negligence claim, published as part of the report, shows that 88% of doctors were worried about the length of time the process was taking and 91% were worried about their mental wellbeing during that time - with some saying they needed professional help, experienced suicidal thoughts, or quit medicine as a result of the claim. Patients, in other recently published research, describe the process as ‘excruciating’ and ‘adding insult to injury’.

Medical Protection also says the slow litigation process in Ireland, which is largely due to a lack of mechanisms to facilitate early resolution, is resulting in high legal costs. The average legal cost for an Ireland claim managed by MPS is €34,646 which is, for example, 26% more expensive than in Singapore (€27,449), and 191% more expensive than in the UK (€11,911).

Medical Protection, which supports and protects the professional interests of over 300,000 healthcare professionals globally including 16,000 in Ireland – says the case for pre-action protocols which enable claims to be resolved earlier, is becoming ever more pressing.

Dr Rob Hendry, Medical Director at Medical Protection, said: “Being involved in a clinical negligence claim can be brutal for both patients and doctors in any country. In Ireland however, this is made much worse by a painfully slow process – longer than in any other country where we have members.

“This means a patient who experiences harm due to clinical negligence in Ireland will wait an unnecessarily long time to receive compensation, and both parties involved in the claim will be dragged through a process that is longer than it needs to be.

“Having a claim hanging over your head for an inordinate length of time impacts on mental wellbeing. Many doctors who have experienced a claim tell us it resulted in anxiety and depression. Some quit medicine, which is the last thing we need. Patients also describe the process as excruciating and adding insult to injury.

“While the human cost of the current process is clear, there is a financial price too. A protracted claims process means lawyers are involved extensively and over a longer period. Our data shows this is racking up legal costs that are among the highest of all the countries where we operate, which affects the cost of indemnity which doctors require to protect themselves against claims.

“State Claims Agency data also shows an eyewatering €84.9 million was spent on legal and expert costs in 2022 – money that could be otherwise available to the HSE.

“The delays to the claims process in Ireland stem from the lack of mechanisms, such as pre-action protocols or case management, which allow for early resolution. Pre-action protocols are widely accepted as needed in Ireland and the Government has committed to their introduction in both the 2022 and 2023 Justice Plan, however we are still waiting for the necessary regulations to be introduced.

“Our hope is that this report - in showing the human and financial cost of the status quo - provides the final pieces of evidence to help get reform delivered without further delay.”

Doctors who have been involved in a clinical negligence claim, commented anonymously as part of Medical Protection’s research:

“It was horrendous. I had to leave medicine after it. I developed severe anxiety during the course of the claim and PTSD. I lost my career in medicine and I am devastated about that. I knew I could never go through the same again.”

“I am dismayed at the length these processes take and think there needs to be a complete overhaul of the medical negligence culture in this country.”

“Claim process was long and time consuming for no reason. This had impacted work, private life and mental health.”

“To cope with one claim I needed years of psychotherapy.”

“It’s unbelievably drawn out, even establishing the facts takes years. It’s hugely time consuming and expensive.”

“[I experienced] suicidal thoughts.”

“Not even sure I am experiencing a claim, as apart from being served 4 years ago, nothing else has happened.”

“The process takes far too long. My case has been hanging over me and negatively affecting my life for years.”

“The inordinate length of time taken by the legal process. Surely, mediation could be used initially.”

“It has significantly affected my enjoyment of working as a GP and I am seriously considering retiring.”

END

For further information contact E: [email protected]

Access a copy of the Medical Protection report: The human and financial cost of clinical negligence claims: The case for pre-action protocols: https://www.medicalprotection.org/reform769984579

Key recommendations:

• The introduction of pre-action protocols without further delay using the provisions in section 219 of the Legal Services (Regulation) Act 2015.
• The introduction of proactive court-led case management to ensure claims are progressed without delays.
• The introduction of a specialist clinical negligence Court with specialist judges and procedural rules.

Further information:

• Pre-action protocols are a set of guidelines, laid out through legislation, which explain the conduct and steps a court expects parties to take before claims can commence. This encourages claims to be settled outside of litigation and reduces the time the process takes.
• MPS data included in the press release and report is from a 10-year period from 1 January 2013 – 31 December 2022. Averages are calculated using the arithmetic mean. The legal cost data is converted from GBP to EUR using the rate of 1.1466 (correct as of 22nd November 2023) and may not reflect inflationary changes over the full period the data is taken from. Length of proceedings is calculated from notification to settlement, and legal costs are the costs associated with defending the claim. Comparisons of legal costs across more MPS markets are included in the report.
• Support for pre-action protocols in Ireland: The Review Group chaired by Peter Kelly, recommended that the Minister for Justice give early attention to the introduction of the regulations prescribing the pre-action protocols in clinical negligence cases. The Government accepted in full the recommendations from Peter Kelly. Pre-action protocols had also been recommended earlier in 2012, by the Working Group on Medical Negligence and Periodic Payments, established in 2010 and chaired by Ms Justice Mary Irvine, former President of the High Court. In 2020, the Expert Group report to review the law of torts and the current systems for the management of clinical negligence claims, chaired by Mr Justice Charles Meenan, also called for pre-action protocols to be implemented. The 2022 and 2023 Justice Plans set out commitment to introducing pre-action protocol regulations through implementation of Part 15 of the Legal Services Regulation Act: ie - Justice Plan 2023 (www.gov.ie)
• In 2022, the State Claims Agency paid out €374.1 million for the total costs of claims. Legal fees represented 22.7% (€84.9 million) of the costs of clinical claims. This is an 11% increase from 2021, where legal and expert costs represented 21.4% (€76.5 million): https://www.ntma.ie/uploads/publication-articles/NTMA-Annual-Report-2022-English.pdf
• Patient’s experiences of clinical negligence claims: Tumelty, M.E. (2021) ‘Exploring the emotional burdens and impact of medical negligence litigation on the plaintiff and medical practitioner: insights from Ireland’, Legal Studies, 41(4), pp. 633–656: https://doi.org/10.1017/lst.2021.20
• The Medical Protection survey exploring the impact of clinical negligence claims on doctors in Ireland, had responses from 200 doctors who have experienced a claim. Key results:
• 91% of doctors were worried about their mental wellbeing during the claim
• 70% were worried about the impact of the claim on loved ones
• 88% were worried about the length of time the process was taking
• 44% said that their experience of a claim has resulted in them reconsidering their future as a doctor
• 96% would support the earlier resolution of claims by having legislation for pre-action protocols
• 96% would support the introduction of a case management system in the High Court whereby parties are obligated to adhere to a reasonable timescale.

About MPS

The Medical Protection Society Limited (“MPS”) is the world’s leading protection organisation for doctors, dentists and healthcare professionals. We protect and support the professional interests of more than 300,000 members around the world. Membership provides access to expert advice and support and can also provide, depending on the type of membership required, the right to request indemnity for any complaints or claims arising from professional practice.

Our in-house experts assist with the wide range of legal and ethical problems that arise from professional practice. This can include clinical negligence claims, complaints, medical and dental council inquiries, legal and ethical dilemmas, disciplinary procedures, inquests and fatal accident inquiries.

Our philosophy is to support safe practice in medicine and dentistry by helping to avert problems in the first place. We do this by promoting risk management through our workshops, E-learning, clinical risk assessments, publications, conferences, lectures and presentations.

MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association.