Last year reports were that the Government was considering proposals to allocate responsibility for the assessment of damages in medical negligence claims to a state body, rather than having such issues fought through the courts.  No decision has yet been made by the Government.

If implemented, it is estimated that these radical proposals would save the State up to €50 million over three years and would remove delays in medical negligence cases.

Little detail is available, but reports suggest that either a medical injuries assessment board, similar to the Injuries Board, would be set up, or the task of assessing damages would be given to the Injuries Board. Major savings have already been achieved by the Injuries Board in personal injuries actions.

If the proposed new entity is to deal solely with the assessment of damages in medical claims, the potential to reduce costs and save time could be limited. While in some instances it is clear from the outset that liability is not really an issue, for the most part medical negligence claims require a detailed analysis of the patient’s allegations, with the input of expert opinion, before a decision can be made to defend or settle.

Assessing damages, including for example future care costs and loss of earnings, is a complex and time consuming part of a significant number of medical negligence claims. However, many cases do not include claims for such damages.

Reform of the system is needed. Nonetheless, a number of initiatives in the last decade have introduced strategies to significantly reduce the length and expense of these actions. Such initiatives include:

• The Civil Liability and Courts Act 2004:  The Act reduced the time within which a claimant can sue; set deadlines for the filing of pleadings; and provided the option of mediation. The objectives of the Act included the saving of time and reduction of costs
• The Working Group on Medical Negligence and Periodic Payments: The Working Group was established by the President of the High Court on 18 February 2010. In its first report in October 2010, it recommended a facility for periodic payment orders. These recommendations have not yet been implemented. The Group is now looking at the conduct of medical negligence claims in order to identify shortcomings and improve the system. As with its first report we can expect that the Group will look to the “UK experience”. The UK has a pre-action protocol to resolve claims without resorting to litigation, or at least at an early stage in the proceedings. The protocol encourages openness when something has “gone wrong” with a patient’s treatment. It sets strict timelines for the delivery of medical records, the issuing of proceedings, and the exchange of expert reports. It also sets out best practice for handling complaints
• Mediation: This is not suitable in every claim but should not be overlooked as an effective method for reducing costs and time spent in litigation
• The State Claims Agency: The Government empowered the State Claims Agency (SCA) in 2002 to handle the defence of clinical claims against public and voluntary and certain private hospitals. This has resulted in significant savings as it avoids the need for multiple insurers and lawyers. The SCA has its own dedicated team of experienced claims handlers to advise on such claims, including advising on the assessment of damages

Further change is needed and, given the current fiscal environment, is to be expected and welcomed.  However, further reductions in costs and delays can be achieved by utilising fully the strategies already available to practitioners, of which the above are but a few examples. It remains to be seen whether the establishment of a medical injuries assessment board, and in respect of which it has to be emphasised there is little available detail, in itself, would achieve the twofold objectives of the exchequer.

Contributed by Margaret Muldowney and Aimée Lenehan.