Clinical negligence claims – the human and financial cost

Dr Rob Hendry outlines why Ireland’s clinical negligence claims process must be reformed

Any readers who have faced a clinical negligence claim, or know a colleague who has, will know just how stressful it can be. At the Medical Protection Society (MPS) we support doctors in Ireland with claims day in, day out, and they often tell us how it hangs over their personal and professional life and leads them to question every clinical decision they make. MPS research supports this. In a survey of doctors who have faced a claim, 91 per cent were worried about their mental wellbeing during the process – with some saying they needed professional help, experienced suicidal thoughts, or quit medicine as a result of the claim.

One doctor who participated in our survey described the process as “horrendous” and said they developed severe anxiety. Sadly, they lost their career in medicine as they could not face going through the same thing again.

Doctors in Ireland also frequently express their dismay at the inordinate length of time it takes to resolve claims, which of course exacerbates their stress and anxiety.

New report

The claims process feels excessively long and drawn out, simply because it is. However, that is not the case in every country where MPS has members. A new MPS report on the human and financial cost of clinical negligence claims puts the issue into context. A claim in Ireland takes 1,462 days on average to resolve, which is 14 per cent longer than in South Africa (1,279 days), and 56 per cent longer than in Hong Kong (940 days), the UK (939 days), and Singapore (938 days).

This means doctors in Ireland are dragged through what can be a brutal process, for longer than necessary. Patients too are having to wait longer to receive compensation and have, in published research, described the process as ‘excruciating’ and ‘adding insult to injury’.

High costs

The human cost of the current claims process is something we are keen to stress to policy makers, on behalf of our members. But we know too well that slow processes also come at a financial cost. A protracted claims process inevitably means lawyers are involved extensively and over a longer period. This has racked up legal costs in Ireland to make them among the highest in the world. Our new report shows, for example, that the average legal cost for an Ireland claim managed by MPS (€34,646) is 26 per cent more expensive than in Singapore (€27,449), and 191 per cent more expensive than in the UK (€11,911).

When legal costs are high, naturally this affects the cost of indemnity, which doctors require to protect themselves against claims and we know this places pressure on members.

It also affects the HSE. State Claims Agency data also shows €84.9 million was spent on legal and expert costs in 2022 alone – money that could be otherwise available to the HSE for patient care and services.

The delays to the clinical negligence claims process in Ireland stem from the lack of mechanisms, such as pre-action protocols or case management, which allow for early resolution

Why is Ireland an outlier?

The delays to the clinical negligence claims process in Ireland stem from the lack of mechanisms, such as pre-action protocols or case management, which allow for early resolution. Pre-action protocols are a set of guidelines, laid out through legislation, which explain the conduct and steps a court expects parties to take before claims can commence. This encourages claims to be settled outside of litigation and reduces the time the process takes.

Pre-action protocols

Pre-action protocols are not new, nor are they revolutionary. In fact, they have been widely accepted as needed in Ireland over the last 10 years, including in reviews by Mr Justice Peter Kelly, Ms Justice Mary Irvine, and Mr Justice Charles Meenan. The Government has accepted the recommendation for pre-action protocols and has committed to their introduction in both the 2022 and 2023 Justice Plan. Progress is, however, painfully slow, and we are still waiting for the necessary regulations to be introduced.

This vital reform must be delivered without further delay and we will continue to press the Government on this. With damaging effects to doctors’ mental wellbeing, significant delays to patient’s receiving compensation, and eye watering legal costs – clearly the status quo is no longer sustainable.

Dr Rob Hendry, Medical Director, Medical Protection Society