Wednesday, 14 May 2014

Ceisteanna (3)

John Halligan

Ceist:

3. Deputy John Halligan asked the Minister for Health the cost of medical negligence claims to the State in 2013; the amount of that sum that went on legal fees for those defending the Health Service Executive; his views on whether, in cases of negligence at birth, the HSE has a tactical policy of deliberately delaying or withholding admission of liability, resulting in a lengthy litigation process for vulnerable families; his views on whether a radical overhaul is needed of the way clinical negligence is managed; and if he will make a statement on the matter. [21354/14]

Amharc ar fhreagra

Freagraí ó Béal (7 píosaí cainte) (Ceist ar Health)

Will the Minister comment on the cost to the State of medical negligence claims in 2013 and the extraordinary sums paid in fees to persons defending the Health Service Executive in such cases? Will the Minister admit that in cases of negligence at birth, the HSE has a tactical policy of deliberately delaying or withholding admission of liability, resulting in lengthy litigation processes for vulnerable families? Does he agree that we need a radical overhaul of how criminal negligence is managed?

I thank the Deputy for raising this important issue, which is a cause of grave concern to me. As an underlying principle, compensation moneys should go to those who have suffered harm, not to members of the legal profession.

The cost of clinical indemnity scheme claims under management with the State Claims Agency, SCA, in 2013 was €119.3 million in total. This figure relates to costs transacted during the period and includes damages paid, legal fees and other expert costs such as medical expert fees. Breaking down the total cost, damages to patients accounted for €81.6 million, State Claims Agency legal costs and expert costs were €17.1 million, and plaintiffs' legal costs and expert costs amounted to €20.6 million.

The management of clinical negligence cases taken against the Health Service Executive is delegated to the SCA, which has a statutory mandate to investigate and manage these cases to completion. I am advised that the SCA, wherever it is proper to do so based on expert medical and legal advice, admits breach of duty at the earliest possible opportunity to avoid distress to patients and their families. Many of these cases, however, particularly those involving catastrophic injuries, are very complex in nature and require time to investigate the liability and causation issues. This inevitably involves some delay before a formal admission of liability, if appropriate, can be made.

A national policy on open disclosure was developed jointly by the HSE and the State Claims Agency and launched in November 2013. The policy is designed to ensure an open, consistent approach to communicating with patients and their families when things go wrong in health care. This includes expressing regret for what has happened, keeping the patient informed, providing feedback on investigations and the steps taken to prevent a recurrence of the adverse event. Implementation of the policy across all health and social services has now commenced by the HSE.

Ireland currently has no express protective legislation to assist the open disclosure process. However, it is intended that this situation will change with the upcoming health information Bill which I expect to publish in early 2015. That legislation will contain a number of measures to promote patient safety, including a provision to encourage open disclosure by affording some degree of protection for health care personnel. This is consistent with the report of the commission on patient safety and quality assurance of 2008. It is also in line with the recommendation in a consultation paper published by the Law Reform Commission in 2008 that "a statutory provision be considered which would allow medical practitioners to make an apology and explanation without these being construed as an admission of liability in a medical negligence claim".

The Minister is no doubt familiar with the case of Dylan Gaffney Hayes from Waterford who suffered serious injuries leading to cerebral palsy at his birth in 2007. A case of medical negligence was taken by his parents and it took three years for the HSE to admit liability, after which the family had to wait another year for damages to be assessed. The damages hearing took 11 days, which was a harrowing experience for the family, particularly Dylan's mother, Jean, who was forced to relive on the stand the whole ordeal of her little boy's birth. Prior to the case being taken, an independent medical investigation concluded that Dylan's injuries were due to mismanagement of his mother's labour, but the State Claims Agency put in a defence denying this. Three years later, at a substantial cost in legal fees and huge emotional cost to the family, the court upheld the original findings of the medical investigation.

The HSE has paid out €255 million in legal fees since 2005 contesting negligence cases, which is approximately 40% of the overall cost of such claims. Ten barristers shared an outrageous €3.15 million in fees relating to medical negligence cases last year, all of which were settled out of court.

It is scandalous.

I cannot stand over the last figures referred to by the Deputy. I do not know, for example, whether the legal fees paid out by the HSE include child care cases, on which a great deal of money was paid out in the period in question. I will check out those details. What is of great concern to me - it is something I pointed out repeatedly when I was on the other side of the House - is that up to one third of the money we pay out in compensation goes on legal fees as opposed to directly to the victims who have suffered as a consequence of misadventure or medical negligence.

If we want to learn from mistakes made, we need open disclosure. I know from my own professional career that in most instances what people want is the three As: an apology for what went wrong, an acknowledgement that something did go wrong, and an assurance that it will not happen again because things are going to change. In most cases that is what people want but they are driven to law because of the frustration they experience through a system that is very defensive and legalistic. That is the reason we need a patient safety agency and the reason I am intent on setting it up this year on an administrative basis, but it will be given statutory footing to be independent. It will be seen as the patient's advocate, the agency to go to when one has a complaint whether it is because somebody was rude or because somebody died. That agency will be one's friend and one's advocate and will advise on how best to pursue the outcome.

It has been claimed that the State could save millions of euro by bringing medical negligence claims under the remit of the Injuries Board. The Minister and Fine Gael spoke about that issue and the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, announced plans to set up a medical injuries assessment board, based on the Injuries Board. How advanced are those plans? Does the Minister support the idea of strict liability for medical injury with compensation assessed by an independent assessment board in such instances?

In principle, I have no issue whatsoever with what the Deputy is suggesting. I am exploring ways of getting the law out of this in terms of the adversarial element and looking at the New Zealand process where the maximum amount paid out is €100,000. It seeks to remedy the effects of the misadventure from the patient's point of view so that the person is supported in the community. Much of the concern here is that we have not, perhaps, supported people who have catastrophic injuries, cerebral palsy and other conditions in a manner in which we could and should support them. If the money was diverted into the community service to support people, they would not feel the need to go to court as much as they do.

The other area for which we have to legislate is around the issue of ongoing payments rather than one big lump sum at the beginning. Clearly, it is not possible to predict with certainty how well somebody will progress or how long they might survive. All of these issues are being looked at by my Department. An area I am particularly concerned about is vaccination. Vaccines are given in good faith, they are produced in good faith and are taken in good faith, yet we know that in certain instances people will have bad reactions. I believe we should support those people, not force them to go to law for compensation.