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Medical Protection tackles the rising cost of clinical negligence

18 January 2019

The Irish claims experience

Hilary Steele, Medical Protection’s claims lead for the Republic of Ireland, explains how Medical Protection is tackling the rising cost of clinical negligence and the increasing burden this is placing on both the State and members

Do we have a compensation culture?

In Ireland, claims for compensation continue to rise. From 2010 to 2017 GP claims received by Medical Protection increased by 76%. The Health Service Executive paid out €248.88m in 2017 for clinical negligence claims, which was an increase of over 20% on 2016. 

This is a global problem, with the medical profession increasingly under the spotlight and plaintiff firms able to build lucrative businesses with little risk and significant financial rewards.

Medical Protection represents members all over the world, and we see disproportionately higher sums of compensation being awarded in Ireland than elsewhere. For example, in a recent case a child, who fell against a radiator and cut his back, leading to a small scar, was awarded €50,000. On appeal the judge noted it was “possibly, if not probably, the smallest scar I have ever seen form the subject of High Court proceedings in more than 35 years of legal practice” and reduced the payment to €25,000. By comparison, compensation for a small facial scar would be £1,360 – £2,810 in Scotland, England and Wales. 

The current guidance on valuing compensation claims in Ireland is set out in the Personal Injuries Assessment Board’s (PIAB) Book of Quantum, which provides suggested compensation for categories of injury. For example, the recommended compensation for a soft tissue injury to the thumb, such as a minor sprain with no loss of function, is up to €21,200. The equivalent UK guideline for such an injury is up to £1,675. 

The addition of high legal fees (higher than in any of the other 40 countries in which Medical Protection operates) has unfortunately created the perfect storm for a compensation culture, in which all too often, the patient’s legal team end up claiming more in costs than the patient actually receives in compensation.

This is of course an unwelcome trend, but members can be reassured of the expertise and support of our team of solicitors, who amongst them have more than 50 years’ experience of managing claims in Ireland, and who remain committed to ensuring that they deliver the best possible outcome on your behalf.

Medical Protection influencing change

We face a major issue with patients’ solicitors delaying, or indeed refusing, to provide key information needed to investigate a claim. These delays are understandably frustrating for members, particularly when they seem designed to maximise the legal costs rather than to obtain fair compensation for their client.

Pre-action protocols have been successful in the UK, as they allow the resolution of claims without the need for court action. Inherent in any such protocol is the early disclosure of all relevant information required to investigate and resolve a dispute, which in turn reduces unnecessary legal costs. It seems obvious that all possible steps should be taken to achieve resolution before legal proceedings start, as this benefits both the patient and doctor. 

We have recently provided detailed recommendations, including the introduction of a pre-action protocol, to a new Expert Group set up by the Government to improve the current system for the management of clinical negligence claims. This Expert Group is highly welcomed and we are well placed to offer a unique insight into best practice because of our in-depth knowledge and experience of dealing with claims locally and worldwide. In our recommendations we have focused on each stage of the claim process – from pre-litigation all the way through to the conclusion of a trial. 

Medical Protection has drafted a voluntary pre-action protocol that has now been signed up to by leading plaintiff firms and the State Claims Agency. This is already starting to change the way in which plaintiff and defence lawyers are engaging, to the benefit of all parties. The legislative framework for a statutory protocol has been in place for many years and we are optimistic that a binding protocol will be brought into force by the Government in the near future.

Light at the end of the tunnel 

We are also encouraged by some recent decisions in the Court of Appeal and the High Court which have, in effect, recalibrated awards of compensation downwards. A recent notable decision is in the case of Kampff v Minister for Public Expenditure and Reform [2018] IEHC 371. 

This case concerned an application for compensation from Garda Kampff, for injuries he suffered to his hand while making an arrest. He sustained bruising but did not require painkillers or physiotherapy. He was on sick leave for five days before making a full recovery. His legal team argued for an award of up to €21,700 as recommended in the Book of Quantum. Mr Justice Twomey provided a detailed analysis of how the Irish courts should value pain and suffering. In particular he pointed to the necessity for awards for personal injuries to be proportionate to the cap on general damages of €450,000 for the most catastrophic injuries such as paraplegia.

He went on to stress that the High Court must avoid a concertina effect when assessing compensation. Therefore, when awarding compensation for modest and middle ranking injuries, it must make sure that the award is proportionate in relation to the most serious and catastrophic injuries awards.

Judge Twomey also noted that the Court should apply a degree of scepticism and common sense to a plaintiff’s claim regarding the effect of the injury and the pain and suffering experienced.

 

Practical steps to avoid a claim

There are some practical steps that can be taken to help reduce the likelihood of a successful claim.

Clinical records

What is written in the records is likely to trump any alternative version of events. The key points to note following any consultation with a patient are:

• the presenting complaint
• examination findings, including negative findings
• the diagnosis (including consideration/exclusion of alternative diagnoses)
• a plan of treatment/use of national guidelines
• agreement/ consent to the treatment plan
• safety netting.

Many claims involve conflicting versions of events. The patient’s recollection of what was discussed may differ significantly to that of the doctor. In these cases, where the patient has suffered an injury, the court will turn to the records as fundamental evidence in reaching a decision. If the records contain a detailed account of the consultation, the court would be unlikely to reject the content of the records as anything other than accurate.  

For example, in a case where a patient attends with back pain and is subsequently diagnosed with cauda equina, a record that includes evidence of queries including red flag symptoms; appropriate examination findings, including negative findings; and safety net advice would make it difficult for a patient to succeed in a claim for injury as a result of delayed diagnosis.  

Consent

Consent is not just an issue relevant to surgery in hospitals. Increasingly GPs perform a range of minor procedures, making the issue of consent highly relevant in day to day consulting and decision making. Minor procedures, such as ear syringing, are often repeated, and at each procedure the patient needs to provide informed consent. 

Every day GPs prescribe medication and refer patients to specialists for further investigations. Patients need to be provided with sufficient information, such as alternative options, before they can make an informed choice about the proposed plan of care (and this discussion needs to be documented). In any such discussion the option of doing nothing should be considered. 

 

Our approach

We fully investigate each claim at the earliest opportunity, using the best expert advice to determine the appropriate strategy and resolve the claim. Our team of specialist lawyers have a reputation for excellence, and are known for being robust and taking an innovative approach. We will defend claims whenever possible and work hard to ensure proportionality of any compensation agreed. We are not afraid to challenge the compensation culture that has developed, leading to often unreasonably high expectations of large awards of compensation for minor injuries. 

Support from Medical Protection

Medical Protection has more than 50 years’ experience working on Irish claims. In addition to the legal team, Irish members are supported by experienced doctors from a range of backgrounds including general practice, pathology, anesthetics, general surgery and respiratory medicine. Members will also have a dedicated lawyer and doctor supporting them from the day we open their claim until its conclusion. However, we are not just here to support with the legal and clinical aspects of a claim, but also to provide members with someone to lean on and talk to during what is undoubtedly a very stressful time.

Are we getting it right?

We write to every member in Ireland who receives a claim, asking for feedback on the service they have received and whether there is anything that we could do better. This is just some of the positive feedback from members we have received over the last couple of months:

“Thank you so much for an update and for being in my corner with this challenging situation. I really appreciate it as I've never approached a situation like this and always believe in communication with the patient.”

“I am happy to report on this my first experience of potential litigation that Medical Protection have been very supportive and reassuring. It is great to feel not alone. Thank you and your team for their continued support.”

“I am very satisfied with my interactions with Medical Protection, and particularly your good self. Initial communication was handled sensitively and this has continued to be the case. Any queries or concerns raised by me have been dealt with appropriately and in a timely fashion. At a stressful juncture such as this, it has been very reassuring to know that you and the team are working on my behalf.”

“Many thanks for all your help and assistance. These events are very stressful and I am glad it has been successfully resolved. I would like to acknowledge all your support and help.”

If you have feedback on the work that we are doing please do get in touch at Ireland@medicalprotection.org

To find out more about the work we are doing to tackle the cost of clinical negligence visit:
medicalprotection.org/ireland/about/media-centre/press-releases/press-releases/mps-points-the-way-to-fair-and-timely-resolution-of-clinical-negligence-claims