Estimated read time: 6 mins
For those of us who have not been part of a clinical negligence claim, it is difficult to comprehend the impact they have.
Try remembering what you were doing four years ago. Now, try imagining a claims process against you starting at that point and lasting up until today. Imagine the different steps you would have gone through during this time, the scrutiny, the accusation, the worry, as well as the impact on your personal and professional life.
Or imagine being the patient involved, being concerned about your health, believing you should receive compensation, but having to go through four years of an adversarial process to maybe get the compensation you believe you need and deserve.
And try visualising the legal steps that would be required during a four-year-long legal process, and the lawyers’ fees that acquire over this time.
I say four years because this is what our own data shows as being the average length of time for a clinical negligence claim to be resolved in Ireland. More precisely, 1,462 days.
For doctors and patients who have been subject to a claim, their own experience is difficult to forget. For those of us at Medical Protection, we also see this impact first-hand through our daily experience of supporting members facing a claim.
Perhaps the most frustrating aspect of this situation is that there are legal reforms that have been long-promised, are already in place in other countries and which would make a significant difference to tackling this problem.
At Medical Protection, we are determined to ensure the wait for these reforms is as short as possible and we are doubling down on our efforts to encourage the government to finally take the last steps needed. This is what led us to publish our report on the human and financial cost of claims, which sets out new evidence on the length and cost of claims as well as the impact they have on members’ wellbeing.
Firstly, we aim to demonstrate the extent to which Ireland is an outlier.
The longer the process, the greater the stress for everyone involved. An analysis of our data shows that the average length of time it takes to resolve a claim in Ireland is 14% longer than it does for claims involving members in South Africa and over 50% longer than for those in Hong Kong, Singapore and UK.
A protracted claims process also inevitably means lawyers are involved extensively and over a longer period, leading to legal costs in Ireland being among the highest in the world. The average legal cost for an Ireland claim managed by Medical Protection is €34,646 – which is 26% more expensive than in Singapore, and 191% more expensive than in the UK. When legal costs are high, naturally this affects the cost of indemnity, and we know this places pressure on members.
Secondly, we aim to help people understand the human impact the claims process has on those involved.
We surveyed members who have recently faced a claim and this found that 91% were worried about their mental wellbeing during the process. A significant proportion of these said they needed professional help, experienced suicidal thoughts, or quit medicine as a result of the claim.
The results of this survey add to other recent research into the impact on patients, with some describing the process as ‘excruciating’ and ‘adding insult to injury’.
Thirdly, we set out the urgent need for pre-action protocols to be implemented, a set of guidelines that would help encourage settlement outside of litigation and to speed up clinical negligence claims.
One of the reasons why Ireland is such an outlier is because of the lack of mechanisms, such as pre-action protocols or case management, which allow for early resolution. Pre-action protocols are a set of guidelines, laid out through legislation, which explain the conduct and steps a court expects parties to take before claims can commence. This encourages claims to be settled outside of litigation and reduces the time the process takes.
Pre-action protocols are not new, nor are they revolutionary. In fact, they have been widely accepted as needed in Ireland over the past ten years, including in reviews by Mr Justice Peter Kelly, Ms Justice Mary Irvine, and Mr Justice Charles Meenan. The Government has accepted the recommendation for pre-action protocols and has committed to their introduction in both the 2022 and 2023 Justice Plan. Progress has however been painfully slow, and we are still waiting for the necessary regulations to be introduced.
This vital reform must be delivered without further delay and we continue to press the Government on this. With damaging effects to mental wellbeing, significant delays to patient’s receiving compensation, and eye-watering legal costs, clearly the status quo is no longer sustainable.
Our full report is available on our website, and we welcome you to read it and share it: Clinical negligence claims - the human and financial cost (medicalprotection.org)