Report on Key Recommendation of Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims

On 16 December last, the Expert Group, chaired by Mr Justice Charles Meenan, published a report reviewing the Law of Torts and the current systems for management of clinical negligence claims. Among other issues, the Expert Group considered alternatives to the court processes for resolving clinical medical negligence claims as the current system may be too adversarial. The main issue: personal injury claims and clinical medical negligence claims are treated in almost the same way. The Expert Group made 17 recommendations to “reduce both the adversarial nature of hearings and considerably improve procedures” to resolve clinical negligence claims.

These 17 recommendations are summarised as follows:

1. As clinical negligence claims involve issues that do not arise in other personal injury actions, practices and procedures must be introduced to reflect this;
2. Pre-action protocols to be implemented together with the commencement of the provision extending the Statute of Limitations period from two years to three years for clinical negligence claims;
3. Procedures allowing for Case Management of clinical negligence claims should be implemented;
4. With the introduction of pre-trial protocols and case management, that there should be a separate dedicated list in the High Court to deal with the management and hearing of clinical negligence claims;
5. That medical records, when requested, are provided in a timely way and in a legible form;
6. That failure to comply with the requirements of pre-action protocols should be penalised with costs or, where there is persistent non-compliance, an order to dismiss the claim or Defence;
7. That s.26 of the Civil Liability and Courts Act, 2004 be amended to provide for sanctions where a defendant files a Defence containing matters in respect of which there is no supportive expert report;
8. The introduction of a ‘no-fault’ system is not recommended to deal with certain clinical negligence claims;
9. The establishment of a compensation scheme to deal with certain vaccine damage claims;
10. A Medical Injuries Assessment Board (MIAB) is not recommended;
11. A system for the “restoration of trust”, as provided for in Chapter 5 of the Cervical Check Tribunal Act, 2019 which allows for meetings to convene between parties to facilitate discussions such as explanations as to what actually happened, none of which would be admissible in evidence, be made available for other clinical negligence claims;
12. Ex-gratia payment schemes should remain to only have a limited role. A wider application is not a solution to dealing with clinical medical negligence claims;
13. Care packages provided by the HSE should be funded so as to reduce the difference between what the HSE can offer and what a court would award. This could reduce the incidence of clinical medical negligence claims;
14. Mandatory disclosure of certain patient safety incidents is recommended;
15. When required by law to do so, failure to make disclosure should be considered to be either professional misconduct or poor professional performance by the healthcare provider involved, and should be the subject of an inquiry by the relevant professional body;
16. It should be a criminal offence for a healthcare provider:

1. to deliberately fail to make a disclosure of a serious reportable patient safety incident when required by law to do so;
2. to alter medical records with the intent to mislead or deceive;

17. The provisions of the Health Act, 2007 should be amended so as to enable the Health Information and Quality Authority (HIQA) to carry out investigations other than those currently provided for under that Act.

Additionally, contents of the reports of the Working Group on Medical Negligence and Periodic Payments, established by the President of the High Court in 2010, were reviewed. This Expert Group once again recommended the need for pre-action protocols and case management of clinical medical negligence claims. Their view is that the implementation of these recommendations “would considerably improve the current system to the benefit of the litigants involved.”[1]

Pre-action Protocols

The Expert Group noted that progress has been made in regard to the implementation of pre-action protocol as there is currently statutory instrument being drafted for them. However, nothing has been introduced to date and it is promising that this recent report will be the last to recommend such changes. These protocols can benefit even the most complex of clinical negligence claims, for instance, by much earlier engagement between the two parties to identify the issues well in advance of the trial. These protocols should allow earlier disclosure of patient records, thus allowing parties to consider any claim or Defence earlier. In allowing this protocol, it can reduce the number of clinical negligence claims that proceed to trial by giving the parties an opportunity to settle the dispute between themselves or by exploring alternative dispute resolution options, such as Mediation, when applicable.

Case Management

Unlike pre-action protocols, no progress has been made in introducing case management to benefit litigants, despite the various recommendations, since 2010. Case management is vital to control long and difficult clinical medical negligence claims. In particular, there is an important provision[2] whereby the introduction of written statements being furnished and agreed in advance of any trial to avoid stress on claimants having to give evidence of a personal and delicate nature in an open court. Where written statements are provided, the adversarial aspect of the trial could be left to determining the dispute between the competent experts. However, this would not prevent a claimant from giving any evidence.

The Expert Group also emphasised that the introduction of these two recurring recommendations of pre-action protocol and case management will diminish the adversarial nature of the system for sensitive cases, similar to clinical medical negligence claims.

Cervical Check Tribunal

In 2018, a report was published on an alternative system to deal with claims arising out of the Cervical Check issues. This led to the creation of a statutory Tribunal, chaired by Supreme Court Judge Mary Irvine (as she then was)[3], contained in provisions of the Cervical Check Tribunal Act, 2019. This Act makes provision for pre-claim protocols and a system of case management, which the Tribunal may adopt. If adopted by the Tribunal, this will demonstrate these recommendations in practice and allow stakeholders to assess any improvements that could be made before any wider application of them.

Conclusion

As was identified in the introduction to the Report, this is but the latest report/ judicial commentary regarding the issues under consideration and it is to be hoped that the current recommendations will be acted upon quickly, particularly the implementation of case management in a dedicated High Court list with its own practices and procedures. Such judicial oversight, similar to practices in the Commercial Court, would enable early identification of matters which can significantly delay the progress of claims - such as the release of medical records to/by all parties and early identification of heads of special damages so that investigations can take place more quickly enabling earlier resolution. The recommendation in relation to funding of HSE care packages to reduce the difference between what the HSE can offer and a court award is also very welcome. The context under consideration was in considering “whether particular care packages could be made available for persons with specific injuries e.g. cerebral palsy following birth", but as such funding would equally benefit those for whom there is no basis for a clinical negligence claim the provision of such funding would have wider impact thus not only potentially reducing the incidence of clinical negligence claims but benefiting some of the most vulnerable people in our society.