Medical negligence court cases taking almost five years to resolve

Medical negligence court cases taking almost five years to resolve

The average time of maternity services-related cases increased by 39% from almost four years in 2012 to almost 5.4 years in 2021. Picture: iStock

Families now have to spend longer in court fighting medical negligence cases than 10 years ago, with some cases taking as many as 5.4 years to process, the Comptroller and Auditor General (C&AG) report shows.

The average time needed to finalise a clinical claim has increased from 4.26 years to 4.97 years or by 17% between 2012 and 2021.

Maternity services-related claims can take the longest, with the average time increasing by 39% from almost four years in 2012 to almost 5.4 years in 2021.

The report also found surgery-related claims took on average 5.25 years to process, an increase of 59% since 2012.

Public medical facilities are indemnified by the state, and claims are managed by the State Claims Agency (SCA) through two schemes; one for clinical claims and one for general.

The number of active cases almost doubled from 5,755 in 2012 to 11,408 in 2021.

The state’s estimated outstanding liability for claims saw a fourfold increase between 2012 and 2021, from €1.1bn to €4.5bn.

“At the end of 2021, CIS (Clinical Indemnity Scheme) claims comprised almost 32% (3,626) of total claims, but accounted for over 75% (€3.4bn) of the total estimated outstanding liability,” the report states.

The report also shows 75% of incidents leading to claims were not recorded on the HSE’s reporting system (NIMS) before the claim was made, between 2017 and 2021.

Over one-fifth of the incidents (21%), should have been reported, they found after investigation.

They found in 22% of incidents there was not enough information to say whether it should have been recorded and 32% of incidents were not known to the relevant authority.

Michael Boylan Litigation partner Ciara McPhillips said there are many reasons why a case might take a long time, including this lack of reporting.

“Only 25% of the cases are in NIMS, so there is no prior notification of the claim, and likely no internal hospital inquiry that might give an initial steer of where things went wrong or if they went wrong” she said.

Recent changes to how settlements are paid, periodic payments orders legislation, were supposed to ensure for people with catastrophic injuries their case could be settled over a lifetime.

“But because it was linked to the consumer price index, as opposed to wage inflation which makes up the vast majority of any settlement, it was described by a High Court Judge as a ‘dead letter’,” she said.

“We had two cases this year which were on their fifth time before the court. Now that is not the SCA’s fault, there should be changes by the legislature on that.” 

The report indicated delays can include the speed at which families and their legal teams proceed, which Ms McPhillips was surprised by.

“It’s obviously never in the plaintiff’s interest for these things to take this length of time, so I am surprised by that,” she said.

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