The Rising Costs of Health-Related Claims

The Report on the Interdepartmental Working Group on the Rising Cost of Health-Related claims was published by the Minister for Health on 19^th September 2024. The Group was chaired independently by Professor Rhona Mahony and comprised of membership from across relevant Government Departments and Agencies.

Key Themes of the Report

In examining these claims, the Group focussed on the following key themes:-

• Examining best international practice to establish how we compare and what lessons can be learned from elsewhere in terms of indemnity models that are in place in other jurisdictions, the cost of claims, the clinical incident rate and the incidence of cerebral palsy;
• Examining whether there are ways to further improve the quality of services/improve patient safety and thereby reduce the number of adverse incidents;
• When an incident occurs, exploring ways to enhance the process to resolve matters faster and more efficiently;
• Seeking to identify ways to reduce costs through a number of civil justice reforms, including the resumption of Periodic Payment Orders (PPOs), the development and implementation of a pre-action protocol (PAP), case management rules and stabilising issues regarding the Real Rate of Return; and
• Considering the health system’s approach to mass action claims.

In recognition of the inherent sensitivities and human cost of harm associated with healthcare litigation, the Group commissioned University College Cork to carry out a qualitative study on Plaintiff experiences of the medico-legal environment in Ireland, and met with a group of midwives, nurses, NCHDs and consultant doctors. Professor Mahony, in her introduction, states that “No patient wishes to find themselves seeking compensation for harm that has occurred because of a failure or error in care that may have had a devastating impact on their life and that of their loved ones. No clinician or healthcare practitioner wants to cause harm.”

Six Strategic Priorities

The Group identified six strategic priorities with the aim to reduce the requirements for litigation in healthcare and improve the litigation process for those taking this path. The six strategic priorities are as follows:-

1. Capturing data, learning from adverse events and promoting key research;
2. Prevention of adverse events: strategy, people and resources;
3. Enhanced response when harm occurs;
4. Care for babies born with Neonatal Encephalopathy and the other Maternity Initiatives;
5. Faster and more efficient resolution of claims; and
6. Standardised approach to Mass Action claims.

Recommendations

The Group set out corresponding recommendations for each of the six strategic priorities. The recommendations, specific to litigation, include the following:-

1. The implementation without delay of recommendations made in a number of previous reports, along with some additional recommendations, advocating changes and improvements to the management of clinical negligence claims to include:
   1. The introduction of a pre-action protocol with sanctions for a party who fails to adhere to the protocol, as recommended in the Meenan Report;
   2. The facilitation of earlier mediation, where possible and agreeable to both parties;
   3. Amendments to case management Rules of Court should be made, to include a stipulation that equivalent rules apply to both sides, and that joint expert meetings (hot-tubbing) should be required to take place; and
   4. A dedicated Court list should be established with Judges in place with specialist knowledge of medical negligence litigation, or other appropriate measures to facilitate the earlier hearing of medical negligence cases.
      
2. The facility for Courts to award Periodic Payment Orders should be resumed;
3. A panel of medical expert witnesses should be developed initially on a voluntary basis which could be overseen by an existing regulatory body with appropriate expertise;
4. The Group recommends that the personal injury discount rate, also known as the real rate of return, should be reviewed at regular intervals by the Minister for Justice; and
5. The Group recommends that a medical records system, with unique identifiers, be put in place to facilitate better and more timely provision of records and that a system be put in place so that a patient or their solicitor can view their electronic medical records. In addition, a training programme for hospital staff should be put in place regarding best practice around medical records.

In relation to the resumption of the Periodic Payments Orders, much work has been carried out by Working Groups on the Discount Rate and Indexation[i]. The reports of these groups concluded that (1) there is no material evidence to justify a change in the current Discount Rate (currently 1% for future care costs and 1.5% for other financial losses), and (2) the Indexation Rate should be based on a combination of the Harmonised Index of Consumer Prices (HICP) and Annual Rate of Change (ARC) in nominal hourly health earnings.

The Report has been widely welcomed and it is hoped that it will finally provide the impetus for long awaited reform in this area of litigation.

[i] Report of the Interdepartmental Group on the Indexation Rate for Periodic Payment Orders – published 8^th July 2024