The Report of the Interdepartmental Working Group on the Rising Cost of Health-Related Claims estimated outstanding liability for healthcare claims in Ireland had risen by 64% between 2018 and 2022, from €2.8bn to €4.6bn, representing an average rise of approximately 13% per year.
The transactional cost of claims had risen from €326m in 2018 to €501m in 2022, an increase of 54%. This was despite an overall fall in the number of new claims annually and was primarily driven by a steep rise in the cost of damages in clinical catastrophic claims, which accounted for over 50% of costs and just 2% of new claims annually.
If such a trajectory were to continue a five billion euro cost today could increase substantially over the next decades.
The Group which drew up the report was chaired by Professor Rhona Mahony, Consultant Obstetrician & Gynaecologist, former Master of National Maternity Hospital and Director UCD Perinatal Research Centre, UCD Perinatal Research Centre, School of Medicine, Dublin.
The report said it was clear that there was much work to be done and that there was no single intervention that would prevent the need for litigation or solve the problem of rising costs of litigation in the immediate term. Nonetheless, there were a number of initiatives that could happen quickly, with significant impact. These included the proposed civil litigation reforms recommended by the Meenan Group and other legal experts in earlier reports.
“In our engagement with a variety of stakeholders, we found strong consistent support for the introduction of a pre-action protocol (PAP), case management rules and the resumption of PPOs. Mediation options need to be developed and used increasingly to shorten the time frame of claims resolution and to avoid costly court proceedings. Sanctions should apply for the failure to adhere to a PAP and case management rules. The introduction of a pre-action protocol in England and Wales resulted in reduced legal costs and it is anticipated that its introduction in Ireland would have a similar effect leading to swifter resolution of claims.
“The fundamental solution is to avoid harm arising from adverse events in a clinical setting in the first place. While successful strategies may reduce the incidence of unanticipated harm and should be pursued vigorously, it is unlikely that any healthcare system in the world will succeed in completely eradicating adverse events.
“It also takes time to see healthcare safety initiatives translate into measurable outcomes. Support should be given to the HSE Patient Safety Strategy and learning from claims should be optimised, with particular attention paid to the dissemination of learning to the clinical frontline. While recognising and acknowledging the increased recruitment of clinical staff in recent years, deficits in staffing and resources in some areas still need to be addressed. It is important that HSE workforce planning initiatives are supported in key areas.
“Enhanced care is required when an adverse event occurs and there is a crucial period following an adverse event when the response by the health system and healthcare professionals can have a positive impact. When things go wrong, our aim must be to assist patients and families with clear and accurate information and timely care and compassionate support. This entails an apology for any failures or shortcomings in care and an acknowledgement of the harm sustained and its impact.
“The principles of open disclosure and bereavement care should be broadened to encompass the care of all those affected by adverse events. Most importantly, we must further develop and support strategies to reduce the occurrence of HIE at birth. We strongly recommend the creation of a cerebral palsy register to inform care strategy. Early intervention is critical in infants born with brain injury to optimise outcomes and potentially reduce future care requirements. The State provision of such care within existing core allocations could facilitate immediate and more effective evidence-based care and lead to growing national expertise, reducing the reliance on ad hoc private care arrangements. In addition, the provision of early claims resolution in the context of perinatal brain injury has the potential to meet family needs in real time, facilitate early clinical intervention and reduce the risk of claims increasing in value due to inflation or unmet needs translating into higher costs. We must aim to reduce the gap between the large court settlements and the care provided by the HSE.
“If we did these things, we would significantly reduce the human suffering and the financial cost associated with healthcare litigation in Ireland.
The Group made the following Recommendations
- Recognising that having appropriately qualified and adequate numbers of staff was a key driver of patient safety, the Group recommended that workforce planning initiatives across the system be further supported, with priority given to high-risk critical areas such as delivery and neonatal units. The adoption of the National Open Disclosure Framework by all relevant stakeholders and the incorporation of the Framework into their organisational policies and procedures at the earliest opportunity.
- A team of trained personnel should be available to each hospital dedicated to responding to serious adverse events, when they occurred. Where appropriate, this team might comprise external regional support. An example of this was the Obstetric Event Support Team (OEST) in maternity care.
- Rapid access to appropriate clinical investigations and care when complications occurred be prioritised in each hospital.
- Guidelines and training for meaningful debriefing with the patient/family following an adverse event should be put in place in each hospital. The implementation without delay of recommendations made in a number of previous reports, along with some additional recommendations, advocating changes and improvements to the management of clinical negligence claims to include:
- The introduction of a pre-action protocol with sanctions for aparty who failed to adhere to the protocol, as recommended in the Meenan Report.
- The facilitation of earlier mediation, where possible and agreeable to both parties.
- Amendments to case management Rules of Court to include a stipulation that equivalent rules applied to both sides, and that joint expert meetings (hot-tubbing) should be required to take place.
- A dedicated Court list should be established with judges in place with specialist knowledge of medical negligence litigation, or other appropriate measures to facilitate the earlier hearing of medical negligence cases.
- The facility for Courts to award Periodic Payment Orders should be resumed.
- A panel of medical expert witnesses should be established.
- The development of a Vaccine Damage Scheme to ensure a controlled approach to management of potential claims should be undertaken urgently in line with previous commitments.
