Marie Kinsella

The much-anticipated final Expert Group Report to Review the Law of Torts and the Current Systems for the Management of Clinical Negligence Claims, chaired by Mr Justice Charles Meenan, issued with little fanfare prior to Christmas.

The Report which can be accessed here contains 17 recommendations summarised as follows:

• As clinical negligence claims involve issues that do not arise in other personal injury actions, practices and procedures must be introduced to reflect this;
• 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;
• Procedures allowing for the case management of clinical negligence claims to be implemented;
• That there be a dedicated list in the High Court to deal with the management and hearing of clinical negligence claims;
• That medical records, when requested, are provided in a timely way and in a legible form;
• 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;
• 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.
• The Expert Group does not recommend the introduction of a no-fault system to deal with certain clinical negligence claims;
• The establishment of a compensation scheme to deal with certain vaccine damage claims;
• The Expert Group does not recommend the establishment of a Medical Injuries Assessment Board (MIAB);
• That a system for the “restoration of trust”, as provided for in Chapter 5 of the CervicalCheck Tribunal Act 2019 be made available for other clinical negligence claims;
• Ex gratia payment schemes only have limited application;
• That care packages provided by the HSE be funded so as to reduce the difference between what the HSE can offer and what a court would award;
• That the disclosure of certain patient safety incidents be made mandatory;
• That failure to make a disclosure, when required by law to do so, 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;
• It should be a criminal offence for a healthcare provider: – (i) to deliberately fail to make a disclosure of a serious reportable patient safety incident when required by law to do so; (ii) to alter medical records with the intent to mislead or deceive;
• That the provisions of the Health Act 2007 be amended so as to enable HIQA to carry out investigations other than those currently provided for.

Pre-action protocols

Let us hope that this is the final report in which pre-action protocols are recommended. Let us hope also that there is little delay in bringing about these much-needed reforms. Having worked in this area of the law in the UK, the writer can attest to the significant efficiencies that can be achieved with the use of mandatory pre-action protocols in the management of even the most complex clinical negligence claims. The protocols encourage co-operation and provide for the narrowing of issues in dispute between the parties. However, in order for the protocols to work effectively, it is also important for the parties to be compelled to address the issue of quantum in a meaningful way at the pre-action stage which in turn will allow for realistic offers of settlement much earlier in the life of the claim.

Witness statements

The Report also recommends the provision of witness statements, the entirely laudable rationale for this being to avoid claimants having to give evidence of a personal or intimate nature in open court. The Report posits that the adversarial aspect of a court hearing could be confined to resolving disputes between suitably qualified experts. The writer has long advocated for the use of witness statements of fact in clinical negligence actions in Ireland similar to other common law jurisdictions. Witness statements can be a crucial part of the case, designed to give advanced notice of the evidence to be relied on at trial, allowing the parties and, most importantly, their experts to be better prepared and thus reducing the element of surprise. However, the Report suggests that the use of witness statements could potentially remove the need for the claimant to give evidence in court unless he or she wishes to do so. The likelihood is that such statements would only replace the evidence-in-chief of the witness. Each party must surely retain the right to cross-examine their opponent’s witness in order to “test” the cogency of the evidence and the witness’s credibility. In such circumstances, unfortunately, the claimant would still have to submit to cross-examination on his or her evidence.

Case management

The Expert Group recommended the implementation of the excellent case management proposals set out in the report of the Working Group on Medical Negligence and Periodic Payments (Module 3) which, the Expert Group say, would considerably improve the current system to the benefit of the litigants involved. However, The Expert Group also notes that, “whilst proposed rules have been circulated for the implementation of pretrial protocols and a Statutory Instrument is being drafted, there has been no such progress in the introduction of case management”.

Case management is an essential tool for the purposes of controlling lengthy, complex and potentially unwieldy clinical negligence cases. It is critical that we do not miss the opportunity to effect this reform in this highly sensitive area of the law. It is critical also, for the sake of all parties involved in these difficult cases, that reforms are not piece-meal.

• Marie Kinsella is a partner specialising in healthcare and pharmaceutical law at Philip Lee.