The length of medical negligence proceedings in Ireland
Posted in [Blog] on Thursday, February 8th, 2024
The Medical Protection Society recently published a report calling for the introduction of pre-action protocols and procedural reform of medical negligence proceedings in Ireland.
The report sets out their recommendations which they say will be useful in reducing the cost of clinical negligence claims in Ireland by allowing claims to be resolved quicker and more efficiently.
The desire for quicker resolution, more efficient and more cost-effective clinical negligence claims where possible is shared by all. However, we must remember the objectives of the proceedings. Along with highlighting the error and effecting change, the aim is to get justice for the injured claimant, provided they can prove their case, and to achieve monetary compensation to compensate them for their injuries and expenses incurred and to be incurred for the duration of their life due to those injuries. In some instances, an injury or medical diagnosis and prognosis may be evolving and, in that circumstance, more haste may be warranted. Litigation is stressful, as the report says, but even more stressful and devastating is living with a medical injury or condition caused by negligence without the means to access appropriate medical treatment, care and therapies such as for example care, a wheelchair accessible home and physiotherapy. The phrase “do you want it done fast or done right” springs to mind.
Whilst the litigation process can be too long and protracted, the right result is usually achieved. In the experience of the medical negligence team at Cantillons our clients say it was worth it in the end – they receive vindication, sometimes an apology and moreover funds to allow them access the medical treatment, therapies, equipment and home adaptions to make their life more comfortable whilst they live with their permanent injuries.
The report states that claims against members in Ireland take longer to conclude than all other countries where they have members and give examples of lengths of proceedings in selected countries around the world. Strangely there is no reference for these statistics, whereas other statistics quoted in the report are referenced clearly. Thus, whilst it is unclear whether in fact Ireland is an outlier in terms of length of proceedings, the comparisons are not the point.
If proceedings can be done quicker and an earlier resolution achieved while still doing justice to a claimant’s injuries then that is to be welcomed. Therefore, I read with interest the report from the MPS and their recommendations which in summary are that Ireland introduce pre-action protocols, procedural rules and proactive management of cases to progress medical negligence cases without delay. It made me wonder, what causes the delays in the cases Cantillons have been involved in. A claimant and their legal team do not cause any unnecessary delay. Why would they when it is in their interest to resolve it as soon as their injuries become clear and the matter has been investigated.
Claimant Solicitors already have a statutory obligation to consider and advise clients whether mediation is appropriate before embarking on litigation. Furthermore, we already request Mediation in the letters before taking action which we are obliged to send to the Defendants and which are almost always ignored.
The delay in our experience is on the part of the Defendants. The Rules of Court already set out clear deadlines and timelines for the various stages and pleadings in a medical negligence case. However, these are frequently breached by the Defendants. Defendants almost always fail to deliver their Defence and fail to exchange their expert reports within the time permitted by the Rules of Court. Where a Defence is eventually delivered it is usually a blanket denial and gives no explanation of the real stance of the Defendant, which they are obliged to do. The delay makes no sense, when the Defendants and the professionals involved in the negligence were present and know exactly what transpired. Often the professionals involved submitted contemporaneous incident reports and the organisation even carried out internal investigations. Yet notwithstanding this an explanation or admission usually only received at the end of the process, after much hounding and often court applications, when we get to a trial or mediation.
We have a clear set of rules in Ireland already. Do we need another set? Or maybe we all just need to adhere to the ones we already have.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or firstname.lastname@example.org if you would like more information.
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