Solicitor accuses State of ‘deny and defend’ policy on medical negligence

A leading lawyer has accused the State of having a ‘deny and defend’ policy and blamed it for massive payments to lawyers in medical negligence cases.

Cork-based solicitor Ernest Cantillon was commenting yesterday on new figures provided by Health Minister Leo Varadkar that show in one case, the State Claims Agency (SCA) paid out over €1.1m in legal fees to a plaintiff’s lawyers last year.

It formed part of an overall payout of €1.55m to lawyers in the case that involved the highest damages payout last year (€6.5m) made by the SCA in the medical area.

The SCA also paid €450,000 to its own lawyers to oversee the case.

In three other cases, lawyers acting on behalf of medical claimants received fees of between €500,000 and €1m from the SCA.

Mr Cantillon’s comments were made prior to today’s High Court action which saw solictors acting on behalf of a 10-year-old boy - alleged to have suffered brain damage during his birth at a Cork hospital - settle an action against the HSE on terms including an interim payment of €2m towards his care over the next two years.

Settled without admission of liability Lee Gibson’s case will return to the High Court again in 2017 for assessment of costs required to oversee his care into the future.

Lee’s mother, Aileen Gibson of Carthage Place, Ringaskiddy, Co Cork, sued the HSE arising from the circumstances of his birth at St Finbarr’s Hospital, Cork in 2005.

Lee has cerebral palsy and is confined to a wheelchair.

In a written Dáil reply to Fianna Fáil’s Michael McGrath, Mr Varadkar confirmed that the 10 highest payouts in response to clinical claims last year totalled €25.6m. Seven of these related to ‘birth specific procedures’, two related to ‘clinical procedures’, and another related to ‘medication fluids/medical gases’.

The SCA paid out an additional €4.97m in legal fees to solicitors for clinical claimants who received the top 10 amounts and paid an additional €2.37m to lawyers it retained to act for the agency in these cases.

Health Minister Leo Varadkar
Health Minister Leo Varadkar

Mr Cantillon said: “The figures that are published are extremely high, but they represent a huge amount of work that has been done, and done unnecessarily, because of the ‘defend and deny’ policy.

“The only way to solve this dilemma is to make it mandatory for healthcare professionals to admit their mistakes from the outset. There should be a criminal sanction if there is a failure to comply with that duty to be candid.

“If a patient is told first day what happened, and why it happened, he/she is firstly less likely to sue and, if he/she does sue, he/she will be far more reasonable to deal with. All of these costs would not, and could not, have been incurred, if such a policy was in place.

“We spend years seeking to prove what the health professionals, and their representatives the State Claims Agency, know from the outset. Why is this?”

Fianna Fáil’s Michael McGrath
Fianna Fáil’s Michael McGrath

A spokesman for the SCA said yesterday: “It is untrue to say there is a defend and deny policy. Our policy is that, where it is just and proper, people who have suffered a personal injury as a result of clinical negligence must be compensated appropriately and as quickly as the circumstances of their cases allow. We also advocate open disclosure, whereby medical professionals acknowledge mistakes.

“The SCA resolves 97% of clinical negligence claims without them being contested in the courts. The SCA has settled every clinical negligence claim within three years of the claim being lodged with the SCA (typically within two years). This is the shortest time possible as the complexity of these cases typically requires expert medical opinion, which can take up to two years to obtain.

“The SCA favours mediation as a route to settle cases as this is less complex, less adversarial, and less costly for both sides. However, some lawyers are implacably opposed to mediation even though the SCA feels mediation would be in the best interests of families who are seeking compensation.”


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