It doesn’t make sense to let the Injuries Board handle medical negligence claims

In a recent article in The Irish Times (13/01/14), Dorothea Dowling, chairwoman of the Injuries Board, claimed the State could save millions of euro by bringing medical negligence claims under the remit of the Injuries Board. She is not the first to suggest it. Fine Gael promised to do this in the run-up to the last general election and, post-election, Richard Bruton announced plans to set up a medical injuries assessment board based on the Injuries Board.

The Injuries Board processes thousands of non-medical personal injuries claims every year, resulting in substantial savings in legal costs. The rising number of medical negligence claims generate substantial costs, most of which are borne by the taxpayer via the State Claims Agency, which defends such claims. But is an injuries board the correct solution for medical negligence claims?

In non-medical personal injuries claims, applications to the Injuries Board are made by submission of an application form together with a medical report. In cases where liability is admitted, the board assesses the value of the claim, which, if accepted by both parties, puts an end to the case. It is ideal for a vast number of injuries caused by motor accidents, trips, falls and minor accidents at work.

There is, however, a substantial complement of cases which cannot be dealt with by the board. These include any case where the defendant disputes liability, cases where the injury is ongoing at the time of the application, cases where there has been a previous injury and cases where there is an issue as to whether the defendant’s breach of duty actually caused the injury complained of.

Some of these features are precisely those that are encountered in the majority of medical negligence claims. Firstly, in many cases an early admission of liability can be hugely difficult, even where liability is ultimately admitted, because in many cases there are a multiplicity of defendants comprising consultants and other doctors, hospitals and, inevitably, the HSE. The investigation of medical claims takes time and can be quite complex. Many doctors, particularly consultants, have indemnifiers other than the State Claims Agency.

Causation is a major issue in a significant proportion of such cases. Even where breach of duty is established or acknowledged, it is frequently the case that there are issues as to whether the injury complained of is attributable to the breach of duty as opposed, for example, to being attributable to the condition being treated and/or whether it altered the long-term outcome for the plaintiff.

Frequently, the investigation of liability issues necessitates the assistance of medical experts. It can be enormously difficult to obtain expert medical reports from suitably qualified experts in a timely manner because, naturally, their medical commitments take priority.

Finally, except in a relatively small proportion of cases, the nature of the injuries in medical negligence claims are such that they would often be ongoing at the time of application to an injuries board.

What is the solution? There is no doubt that reform is needed in medical negligence litigation. Enormous benefits can be gained from reductions in cost and duration. As we have done many times before in our legal history, we can look to other common law jurisdictions and “borrow” tried and tested methods rather than seeking to fit clearly unsuitable claims into a model designed to deal with only the most clear-cut cases.

Pre-action protocols have proved hugely successful in the UK. Mandatory rules relating to the exchange of information and timescales for such exchange apply to medical negligence claims before litigation commences. The protocols are designed to, as far as possible, remove the more adversarial approach to exchanging information and to encourage both parties to clarify the issues actually in dispute at the earliest possible opportunity. The UK experience has been that cases settle far earlier and even where they do not settle, the narrowing of issues at an early stage saves vast amounts of time and costs for cases that do proceed to court.

After proceedings have commenced, case management procedures provide further opportuities to reduce the duration and cost of trials. These procedures include provision for the control of time limits, exchange of witness statements, reduction in duplication of expert witnesses and the encouragement of alternative disupute resolution.

The High Court Working Group on Medical Negligence, now chaired by Ms Justice Mary Irvine, has comprehensively looked into the many options for managing medical negligence claims. It is understood that this report has been submitted to the President of the High Court. Practitioners, insurance companies and indeed taxpayers eagerly await its release.

If the UK experience is anything to go by it would seem likely that the solution to the problem of reducing the cost of medical negligence litigation is more likely to be found in the recommendations of the working group than in an ill- conceived attempt to fit such claims into an Injuries Board model that fails to recognise the significant differences between medical negligence personal injuries claims and non-medical personal injuries claims.

Emma Hanratty is a barrister practising in medical negligence