We should legislate for apologies

An urgent and radical reform of the law on clinical negligence in Ireland was called for by legal experts at a Dublin conference. Maureen Browne reports.

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Legislation to provide that an apology made by or on behalf of a defendant in relation to a claim for clinical negligence would not be taken into account in determining fault or liability was urged at a top level conference on Clinical Negligence and Litigation in Dublin.

Such an apology should not be admissible in proceedings as evidence of fault or liability by the person making the apology, it was stated at the Conference, organised by Hayes Solicitors and attended by over 250 legal and medical practitioners.

The reform, they said, should include a new culture of openness and transparency, a less adversarial system with greater use of mediation to settle claims, the implementation of legislation for Periodic Payment Orders, pre action protocols and case management to ensure faster and more effective settlement of claims which go to court.

Conference experts believed open disclosure should be the norm, not an option, and there should be a support and counselling system for patients, families and staff involved in adverse incidents.

Open disclosure should be the norm, not an option and there should be a support and counselling system for patients, families and staff involved in adverse incidents.

Ms. Justice Mary Irvine, High Court Judge and Chairperson of the Working Group on Clinical Negligence Litigation, which produced its third and final report recommending reform last year said “As far as damages are concerned in Ireland we have what I can only describe as a very unjust, ineffective and Dickensian system of awarding damages. We have to award a lump sum payment which has to do people for life. In lots of cases this is very satisfactory, but in catastrophic injuries there is often a dispute as to how long they will live and we have to try and make an educated guess and give them a sum which will last the rest of their lives. There is often a dispute about the length of time patients will live and if the Judge makes the decision incorrectly because of an inability to predict this correctly, the patient can either run out of money or the family can get an unwarranted windfall at the expense of the insurer or the taxpayer,” she said.

Mr. Justice John Quirke, first Chairman of the Working Group on Medical Negligence and President of the Law Reform Commission, gave the keynote address which he said expressed his own views and the Law Reform Commission, with which he was associated, had not formally considered these matters. He recommended reform by the introduction of Periodic Payment Orders, Pre-Action protocols for the resolution of clinical disputes and case management of clinical negligence claims.

Pre-action protocols were intended to encourage openness so that litigants were given sufficient information at an early stage to enable claims to be resolved without necessarily resorting to Court action. They included pre-action correspondence and disclosure of records within prescribed time limits, a flexible approach to the provision of expert evidence – permitting agreed expert evidence in appropriate cases with consequent reduction in costs, the consideration of alternative dispute resolution including, but not limited to, negotiation, early neutral evaluation and mediation and costs sanctions for non compliance with protocols.

Mr. Ciaran O’Rorke, Partner and Head of Healthcare at Hayes Solicitors, said the real goal of reform should be the patient who had suffered injury or death, but the reputation of the doctor/medical staff /hospital was also at stake. “The terrible emotional burden on the patient and defendant must always be at the forefront of our minds, so the goal of these reforms is essentially to pave the way for the patients and doctors to an early resolution of the claims that is both just and fair to both parties in so far as it is possible.”

Mr. Ciaran Breen, Director of the State Claims Agency Clinical Indemnity Scheme called for reform of the current adversarial court system for clinical negligence issues saying it did not serve patients or their families or ensure that they were getting true justice.

“We are deeply committed to the kind of reforms such as open disclosure, greater use of mediation and Periodic Payment Orders discussed at this Conference,” he said.