Medical Protection has called on the Irish government to do more to tackle the rising cost of clinical negligence claims, including introducing a pre-action protocol.
As the report of the Review of the Administration of Civil Justice in 2020, led by Mr Justice Peter Kelly, who was President of the High Court at the time, concluded: “Ireland ranks among the highest-cost jurisdictions internationally for civil litigation.”1
In our experience, clinical negligence claims often take longer resolve than is necessary. This is in part due to a lack of what is called a pre-action protocol. Now, more than ever, legal reforms are needed to reduce legal costs as well as the stress that healthcare professionals and patients have to endure.
Legal fees are high in Ireland; in fact, they are higher than all the other countries around the world where Medical Protection supports members. Significant delays in resolving claims are often responsible for inflating legal costs, and the current court rules can be easily exploited to accommodate delays.
The high cost of resolving claims in Ireland impacts healthcare professionals directly. As a responsible mutual defence organisation, we have an obligation to reflect the cost of defending clinical negligence in membership subscription fees so we can be in a position to defend members’ interests long into the future.
These high costs also impact on the wider health service. The National Treasury Management Agency’s 2020 annual report shows that legal and expert costs represented 24% of the total costs of clinical claims (€76.8 million of the €321.8m). Ultimately this is money that could be better spent on patient care.
Just as importantly, lengthy and convoluted litigation processes have a very significant impact on the levels of stress experienced by both patients and healthcare professionals.
Unlike many other countries, solicitors in Ireland are not required to provide specific information and medical records in a way that could resolve clinical negligence claims earlier in the process without the need for court proceedings. A pre-action protocol provides the opportunity to investigate and resolve claims sooner, without the need to go to court, by promoting early identification and communication of the issues in dispute between the parties.
In Ireland, only 53% of cases are resolved at the pre-action stage (with 43.8% resolved post-proceedings and 2.5% resolved at trial). By way of contrast, in England and Wales, where pre-action protocols have been in place for over 20 years, over 70% of claims are resolved prior to the issue of court proceedings (27.9% resolved post-proceedings and 0.6% proceeded to trial).2
What is Medical Protection doing about it?
In November 2021, we co-ordinated a joint letter as a coalition of healthcare organisations to the Minister for Justice, urging her to introduce the relevant regulation for pre-action protocols to be introduced. The letter was signed by the Irish Hospital Consultants Association (IHCA), Irish Dental Association (IDA), Royal College of Surgeons of Ireland (RCSI), Royal College of Physicians of Ireland (RCPI), Irish College of General Practitioners (ICGP), Faculty of Dentistry RCSI, the College of Ophthalmologists in Ireland and the Medical and Dental Consultants Association (MDCA).
The letter was exclusively covered by The Irish Independent as well as the Medical Independent, Head Topics and the Irish Examiner.
These reforms have also been supported by a series of working groups – chaired by Justice Irvin3, Peter Kelly4 and Charles Meenan5 – all of which have recommended that pre-action protocols be introduced.
The legal powers already exist to make this change in the Legal Services (Regulation) Act 2015. Whilst the government has shown support for pre-action protocols, they are yet to take the final steps required to formally bring pre-action protocols into action.
There is a longer-term debate about how compensation payments are calculated in Ireland and the management of clinical negligence claims by the courts. However, the implementation of pre-action protocols, for which there is already broad consensus, could bring substantial change.
1Review of the Administration of Civil Justice Report. October 2020.
2Mary-Elizabeth Tumelty. Exploring the emotional burdens and impact of medical negligence litigation on the plaintiff and medical practitioner: insights from Ireland. Cambridge University Press. May 2021.
3Report on the Working Group on Medical Negligence and Periodic Payments. March 2012.
4Review of the Administration of Civil Justice Report. October 2020.
5Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims.