The Irish Times view on medical negligence: In search of a new way

The State urgently needs an alternative to costly, adversarial court processes

While originally promised in the programme for government, the decision to move forward on the clinical negligence review is undoubtedly driven by the revelations of Vicky Phelan and other victims of the CervicalCheck controversy. Photograph: Nick Bradshaw

While originally promised in the programme for government, the decision to move forward on the clinical negligence review is undoubtedly driven by the revelations of Vicky Phelan and other victims of the CervicalCheck controversy. Photograph: Nick Bradshaw

 

The decision by Cabinet to establish an expert group on clinical negligence is welcome. To be chaired by Mr Justice Charles Meenan of the High Court, the group will consider alternatives to the court process.

While originally promised in the programme for government, the decision to move forward on the issue now is undoubtedly driven by the revelations of Vicky Phelan and other victims of the CervicalCheck controversy. Announcing the decision, Minister for Health Simon Harris highlighted the need to deal more sensitively and in a more timely fashion with catastrophic birth injuries, certain vaccine damage claims, and claims where there is no dispute about liability.

Consideration must also be given to the introduction of a no-fault system whereby restitution for medical harm is taken out of the adversarial legal system

There is also a financial imperative for reform.The Oireachtas Public Accounts Committee has been told the HSE requires a contingent liability of €2 billion to fund claims into the future. This is an enormous sum in the context of an annual health budget of almost €15 billion. The review must also examine the work of the State Claims Agency in the area of clinical negligence. It must look at current clinical claim management systems and whether there may be an alternative mechanism by which claims could be determined more efficiently and effectively.

Vicky Phelan has said the drug treatment she has been undergoing appears to be working and her tumours have shrunk significantly. File photograph: Collins Courts
While originally promised in the programme for government, the decision to move forward on establishing an expert group on clinical negligence is undoubtedly driven by the revelations on the treatment of Vicky Phelan (above) and other victims of the CervicalCheck controversy. File photograph: Collins Courts

The Medical Protection Society, a major provider of indemnity cover to doctors in the Republic, has proposed a voluntary pre-action protocol with the State Claims Agency and four leading clinical negligence firms.

Such a protocol would offer a framework for claim resolution without the additional pressure and cost of having to attend and give evidence in court. Consideration must also be given to the introduction of a no-fault system whereby restitution for medical harm is taken out of the adversarial legal system.

Mediation, as an alternative means of dispute resolution, should form part of the expert groups deliberations. It has been shown to benefit all parties by facilitating discussion and an understanding of events and their impact. Promoting transparency and sharing of information should also lead to earlier resolution of claims.

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