Victims ‘left to flounder’ in medical negligence cases

Victims of medical mistakes are “left to flounder” in seeking access to justice while the State deploys “massive” resources in mounting a legal defence, a solicitor has claimed.

Ernest Cantillon, who specialises in medical negligence cases, said it was difficult to reconcile the State's obligation to ensure a fair hearing with the way in which it funded the State Claims Agency, the body that manages clinical claims, and "failed" to fund victims.

“Massive financial and human resources are being utilised by the State to, as the State Claims Agency website says, ‘robustly defend’ medical negligence cases,” he said.

“On the other hand, very little of the State’s resources are being expended through legal aid or through adequate costs being provided to assist plaintiffs.”

Childbirth

Mr Cantillon was speaking yesterday at a conference on medico-legal issues in childbirth. It was organised by the Medical Injuries Alliance and Action against Medical Accidents, advocacy groups for people affected by medical mistakes.

The solicitor said the cost of taking a negligence case was so high only specialist firms could afford them. The initial outlay in a significant case could be €100,000, which would cover the commissioning of reports and securing the attendance of witnesses. He said it could then take three to six years for a trial to take place, and during that period neither solicitor nor barrister would be paid.

“There are very few plaintiffs or victims who can afford to fund a medical negligence claim,” he said. “Such claims are, in reality, funded by the commercial decision taken by the lawyers to run the case.”

Inadequacy

The legal aid board provides court funding in about 35 medical negligence cases each year, which Mr Cantillon estimated represented about 10 per cent of the cases mounted against the State. “This is not due to the fact that the hospitals are only injuring rich people but is due to the inadequacy of the legal aid system,” he said.

Costs awarded to legal teams in clinical negligence cases have fallen sharply in recent years, and Mr Cantillon suggested this caused some solicitors to question when they could continue to fund this type of litigation. While the State was correct to ensure there was no ripping-off of the taxpayer, he added, “saving the State money really is a covert way of saying ‘let’s take it from the victim’s pocket’.”