An expert group examining ways to address clinical negligence claims outside the courtroom has identified a series of challenges to introducing a “no-fault liability” system, including that it “could lead to lessons not being learnt”.
The Expert Group on tort reform and the management of clinical negligence claims said learning from mistakes was “a benefit of the current liability-based system”.
In its interim report published today, the group cautioned that the costs of a no-fault scheme could be “prohibitive” as compensation awarded “would have to be comparable with that awarded under the current court process".
The group looked at how “no-fault liability” regimes operate in other countries and noted that causation is still required to be proven and “in many cases, the issue of causation was every bit as contentious as liability”.
In examining the current system from the perspective of the person who has made the claim, the group heard directly from Ruary Martin of his experience of the legal system.
Mr Martin’s daughter, Milagros Martin, was catastrophically injured at birth by reason of clinical negligence.
Mr Martin has previously told the court that it is "wrong" and a "legislative failure" that cases of catastrophically injured children like his daughter still have to come before it. The group concluded that no-fault liability needed further consideration.
Where progress could be made, however, was in the area of pre-trial protocols and case management of clinical negligence claims. In this respect, the expert group said the groundwork had been done, mainly by the Working Group on Medical Negligence and Periodic Payments, and “what is required is implementation”.
The group also considered a report from the HSE outlining supports it provides to children with complex medical conditions in the home, including those that arise from catastrophic birth injury, and found they were restricted by funding and postcode.
The group said there are currently 286 such children “and this number is set to grow in the coming years”.
It said there are “significant gaps in what is provided due to budgetary limits and regional variations in availability of therapists”.
The group also received the “Report on an Alternative System for Dealing with Claims Arising from CervicalCheck” which it will consider “in the wider context of clinical negligence claims and how they might be managed in the future”. This report, which proposes a statutory Tribunal to hear and determine claims arising out of CervicalCheck, was compiled by High Court Justice Charles Meenan, who is also chair of the expert group.
The group, which received 41 submissions, intends to publish its final report in June. It will also examine how best to deal with claims arising from vaccination programmes; patient safety and open disclosure; the possible establishment of a Medical Injuries Assessment Board like the Personal Injuries Assessment Board.