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

2. 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

3. 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

4. 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?…

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. Thank You
Rebecca Ryan Matheson 70 Sir John Rogerson's Quay Dublin 2 T: F: E: W: