Dedicated High Court list for medical negligence cases could reduce costs, lawyers say

Speedier settlements and a dedicated High Court list for medical negligence cases with active case management could reduce their cost and length, two experienced solicitors representing claimants have said.

Solicitors Ernest Cantillon and Cian O’Carroll were responding to a report published this week by the Medical Protection Society (MPS) which found medical negligence cases in Ireland take longer and are more costly than the UK and several other countries.

The State Claims Agency (SCA) paid out €374 million in clinical claims in 2022, including €85 million in legal fees. The average legal cost for a claim in Ireland was €34,646, 191 per cent more than in the UK.

The MPS report found the average cost of a medical negligence claim in Ireland is almost three times higher than in the UK and cases take over 50 per cent longer to resolve. A medical negligence claim in Ireland takes 1,462 days on average (four years), 14 per cent longer than in South Africa and 56 per cent longer than in Hong Kong, the UK or Singapore, it found.

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The report, based on interviews with 200 doctors, noted 88 per cent were worried about the length of time the litigation process was taking and 91 per cent worried about their mental wellbeing while it was ongoing. Some said they needed professional help, experienced suicidal thoughts, or quit medicine as a result of the claim.

The MPS, which provides indemnity cover for 16,000 healthcare professionals in Ireland, has urged a range of steps to address the length and costs of medical negligence litigation, including the necessary regulations for pre-action protocols and active case management.

Speaking on Wednesday, Mr O’Carroll endorsed the recent call by Attorney General Rossa Fanning for active judicial management of cases across more lists in the High Court. While urgent cases are heard speedily, a specialised list for all clinical negligence cases would improve the quality of the litigation, speed it up and reduce costs, he said.

More than nine in ten cases settle but the fact many do so only on the steps of the High Court adds to the length and costs of the litigation. “Time is money,” he said.

Many of his firm’s cases involve the SCA which actively engages in pretrial mediation and that process works well, he said. Most cases, he added, settle on the basis of existing costs norms and the SCA “drives a hard bargain” on costs.

Medical negligence cases are complex but, when people are required to focus, a case can be built and resolved more quickly, he said.

It was “unfair” to criticise defendants over not making earlier admissions of liability as they need to be given time to respond to the case built up over time by the plaintiff but there are cases where responses could be made more quickly, he said.

Asked about calls over the years to have catastrophic injury cases taken out of the legal system altogether, he said those cases are aimed at ensuring funding is available to meet the lifelong care needs of the injured plaintiff. If such care was guaranteed by the HSE, parents would not have to resort to litigation, he said.

Mr Cantillon said the manner in which cases are defended by the MPS “adds greatly to the costs of the litigation, both in monetary terms and the distress of those impacted, patients and doctors”.

There are applications before the High Court every Monday concerning MPS doctors not putting in defences with responding applications for more time to do so, he said.

A doctor present for adverse outcomes “is surely in a position to give their first-hand account of what happened”, he said. “Why does it take three years?”

In that context, the Society’s complaints about length and costs of litigation “ring hollow”, he said.

A senior counsel who has represented both plaintiffs and defendants in medical negligence cases, who asked not to be identified, said such litigation is complex but there is more use of mediation and “a far greater move towards early resolution”. Defendants’ legal costs are falling “fairly consistently” as a result of pressure applied by the MPS and SCA, he said.

Noting various reports over the years identifying Ireland as a high cost location for litigation, he said there is no guarantee tighter case management and a specialised medical negligence list will reduce the overall costs of such litigation. “More pressure on lawyers to get cases ready could lead to higher charges,” he said.

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