Moving from the Dark Ages Rebecca Ryan, Partner, Healthcare Group

Overview Healthcare litigation and the urgent need for change Reform – an international perspective Progress in Ireland – an update on where we are Litigation in Ireland and Utopia

Litigation in Ireland – Current Issues Access to justice Overly complex system for recovery Rising cost of claims Delays in time sensitive cases (eg, catastrophic birth injuries) Patient safety culture – open disclosure

Litigation in Ireland – Current Issues Working Group on Medical Negligence and Periodic Payments Periodic payment orders – report in October 2010 Pre-action protocols – report in March 2012 Case management – report in April 2013 Expert Group to review torts and the system for management of clinical negligence claims Final report due in June 2019 Implementation?…

Reform – An International Perspective England and Wales Reforms Woolf reforms (1996) – Civil Procedure Rules 1999: Case management conferences – reduce delay Pre-action protocols – encourage exchange of information Offers to settle Summary Assessment of costs

Reform – An International Perspective England and Wales Reforms Jackson Report (2010) on litigation costs resulted in further reform: Contingency fees / damages-based agreements After-the-event insurance premiums no longer recoverable (10% increase in general damages to compensate) Costs – proportionality test / costs management Qualified one-way costs shifting in personal injuries claims

Reform – An International Perspective England and Wales Reforms Jackson Report (2010) on litigation costs resulted in further reform: Offers to settle – stricter sanctions introduced Witness evidence - powers to define / limit factual evidence Experts – identify issues / estimate as to costs / ‘hot-tubbing’ Case management – increased focus on compliance

Reform – An International Perspective Australian Reforms – ‘Public Liability Crisis’ Lack of consistency across territories Reforms include: Reduced limitation periods for PI claims Awards for loss of earnings capped at multiple of national average Awards for future damages discount rate increased Capped legal fees

Reform – An International Perspective Australian Reforms - ‘Public Liability Crisis’ Reforms include: Protection to ‘Good Samaritans’ Apologies – not admission of liability or fault Parties must explore ADR in some territories Personal liability for solicitors – baseless claims

Reform – An International Perspective Australian Reforms – Medical Negligence Specific The Bolam principle Certain immunities for public health authorities No uniform duty of care Personal injuries procedural differences

Progress in Ireland – Status Update (1) Periodic Payment Orders – in force since October 2018 Risks reduced for plaintiff and defendant Discretion of the Court Stepped PPO Security of payment First PPO granted by the High Court in February 2019

Progress in Ireland – Status Update (2) Pre-action protocols – report published March 2012 Engagement prior to litigation - pre-action protocols should: Secure earlier disclosure of patient records Provide opportunity for parties to settle dispute between themselves Earlier identification of issues ultimately in dispute Provide an appropriate context for a patient to seek and obtain a suitable apology Report provided draft pre-action protocol: Regulate and prescribe time limits for the stages of request for records and response to request for records Notification of claim, letter and response to claim

Progress in Ireland – Status Update (3) Case management of clinical negligence claims Draft rules for case management of clinical negligence proceedings published April 2013 Proposals include: Case management conferences (potential video-link) Case booklet, case timetable and pre-trial questionnaire Judges to fix date for trial Detailed provisions on exchange of expert evidence

Progress in Ireland – Status Update (4) Open Disclosure Part 4 Civil Liability (Amendment) Act 2017 Voluntarily disclose that a “patient safety incident” has occurred No admission of fault / not admissible as evidence Apology? Optional… “An expression of sympathy or regret” General Scheme of the Patient Safety Bill 2018 Mandatory open disclosure where a “serious patient safety incident” occurs… Failure can lead to up to €7,000 fine and 6 months imprisonment SCA to analyse and publish anonymised information on reportable incidents

Progress in Ireland – Status Update (5) Expert Group to review torts and the system for management of clinical negligence claims: Broad areas to be pursued: Assess effectiveness of current legal framework Consider alternatives to the court process Consider a ‘no-fault system’ Examine certain roles of the HSE and SCA Consider patient safety and open disclosure

Expert Group – Alternatives for Resolving Clinical Negligence Claims Interim report in March 2019 Constitutionality of ‘no-fault liability’ considered The role of the HSE and the services it provides Alternative system for dealing with claims arising from Cervical Check scandal Final report in June 2019: Consider establishment of a Medical Injuries Assessment Board Patient safety and open disclosure to be discussed

Progress in Ireland – Status Update (6) Personal Injuries Commission Report Final report published September 2018 Assess systems for handling PI claims Benchmark Irish PI award levels with international awards Examine alternative compensation and resolution models Findings: Fraudulent activities carry a low risk of detection and prosecution Judicial guidelines on appropriate damages are required Consider adoption of a standardised injury coding system

Litigation in Ireland and Utopia Faster claims processing Access to justice not prohibitively expensive Lower premiums for medical professionals Increased patient safety Taxpayers not overly burdened

Litigation in Ireland and Utopia No-fault compensation - New Zealand’s Accident Compensation Corporation Government-funded compensation scheme Fixed award schedule Cost effective system Nine month time limit for decisions No system directly comparable Strong social security system Lower compensation awards

Thank You Rebecca Ryan Matheson 70 Sir John Rogerson's Quay Dublin 2 T: +353 1 232 2460 F: +353 1 232 3333 E: rebecca.ryan@matheson.com W: www.matheson.com