Daniel McConnell: Laying the blame for the state of the claims against our State 

A much greater focus is needed as to how such claims are handled to prevent such instances happening again and again, writes Daniel McConnell
Daniel McConnell: Laying the blame for the state of the claims against our State 

Vicky Phelan, the cancer patient whose case triggered the cervical smear test controversy arrives at Leinster House, Dublin, to give evidence to the Public Accounts Committee. PRESS ASSOCIATION Photo. Picture date: Wednesday May 16, 2018. See PA story IRISH Cancer. Photo credit should read: Brian Lawless/PA Wire

Last year, my seven-year-old daughter Eliza broke her arm in the playground in the park near our house on a glorious summer’s day.

Days after the fall, I took her to Croke Park to watch Dublin stroll to victory.

On our way, we stopped to buy her a flag to bring in with her.

The seller noticed the cast on her arm and asked what had happened.

When I explained she slipped from a railing in the playground, he immediately remarked: “You should have claimed for that.” 

Such a thought never crossed our minds as what happened was a total accident. But it was a revealing episode as to the mindset of many in Ireland.

In life, mistakes happen. We all know that.

Such errors occur in the private sector and in State bodies. And when they do, more often than not there are financial pay-outs by way of compensation and damages.

In Ireland, claims of negligence related to public entities are handled by the State’s Claim Agency, which is itself an offshoot of the National Treasury Management Agency (NTMA).

Whereas private companies who are found to have screwed up have to foot the bill, it is the taxpayer who has had to pick up the tab when state employees drop the ball.

Something very alarming has been going on in terms of the amounts of money the public purse has been called upon to meet because of such cock-ups.

Since 2010, the cost of meeting claims relating to the medical sector has risen five-fold from an already staggering figure of €81 million to €416.9 million in 2019, with the numbers increasing year on year.

Indeed, there was a 20% hike in the amount on 2018.

Of that €81 million in 2010, €77,770,890 related to “clinical” cases which include “incidents relating to the provision of services of a diagnostic or palliative nature. It also includes incidents relating to the provision of treatment. 

Incidents present in this category will be related to clinical procedures, birth specific procedures, medication incidents, or nutrition/blood-related incidents,” the SCA states.

The remaining €3.4 million fell under the “general” category. “A general incident is one which falls outside of the Clinical Care Incident hazard category. This includes all incidents relating to exposure to physical hazards, exposure to psychological hazards, exposure to chemical hazards, exposure to biological hazards and crashes/collisions.” 

In 2019, the clinical figure had ballooned to approximately €325 million while the general figure had spiralled to €91 million.

The SCA does not just deal with claims relating to medical failure, but for all public bodies including An Garda Siochána, all government departments, Tusla, the Defence Forces and the Prisons Service.

A similar spike in costs since 2010 is visible here, albeit at a lower level.

For example, €9.6 million was paid out to deal with claims in these bodies a decade ago while that figure had risen to in excess of €24 million in 2019.

To put it in its fullest context, according to figures released, the total outlay of all payments due to negligence in the past decade has topped €2 billion.

Yes, €2 billion.

And by the end of last year, the SCA was dealing with in excess of 11,500 cases with an estimated outstanding liability of €3.6bn.

It is reasonable given the significant escalation in costs to ask just what is going on.

Are our medics making four times more mistakes than they were in 2010, have we become more litigious as a society or is there something else going on?

The SCA, in its latest annual report said that the estimated outstanding bill has increased by 105% in the past 5 years.

It said that “due to the high value of catastrophic injury claims, this is the principal driver of the overall estimated liability. The number of active catastrophic injury claims has increased by 42%”.

It was noteworthy that last year, the then Public Accounts Committee (PAC) sought answers from the SCA as to why the associated legal costs per claim are five times greater than those for general claims, given that 98% of clinical claims are resolved without recourse to the courts.

The SCA was also criticised for the time taken to finalise claims and the consequent distress to claimants in respect of catastrophic birth-related claims.

The PAC, as the Dáil's spending watchdog, criticised a failure to learn from clinical negligence claims against the State.

Then PAC chairman, now junior finance minister, Seán Fleming said the number and cost of claims against the State continues to escalate year-on-year, particularly those that arise from clinical negligence. 

Social Democrats TD, Catherine Murphy. Picture: Gareth Chaney/Collins
Social Democrats TD, Catherine Murphy. Picture: Gareth Chaney/Collins

He said: "To date there is no evidence of a functioning systems-wide approach in the Health Service Executive (HSE) to incorporate learnings from associated incidents across the entire health sector.

"The failure to incorporate learnings is itself likely to contribute to the increase of such claims,” he said.

Social Democrats TD Catherine Murphy said the sums involved are "eye-watering", that the policy of open disclosure by health service staff is "essential if we're going to address that liability", and there needs to be a "cultural shift" in the approach to handling such claims.

While it is easy to get dizzy from the huge numbers associated with this, it is important that behind all of these payments are personal tragedies.

They are children born with physical defects.

They are women like Vicky Phelan, failed in their cancer treatment.

They are members of the Defence Forces who have suffered from ingesting Larium.

Many of those in receipt of large rewards require full time care for the rest of their lives and are fully deserving of their monies.

But, given the runaway spiralling of costs, it is perfectly legitimate to beg the question as to what the hell is going on here?

A much greater focus is needed as to how such claims are handled and more importantly, as Fleming argued, to prevent such instances happening again and again.

The stark figures show that the taxpayer is paying an even heavier price for the mistakes of those who are charged with running the State.

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