Clinical Negligence Protocol-Is it just Smoke & Mirrors?

On 30 December 2015, the signing of the Legal Services Regulation Act 2015, introduced pre-action protocols in clinical negligence matters in Ireland.  The Government hope that this pre-action protocol will reduce the number of clinical negligence actions brought before the Courts or where this is not possible, shorten the length of the litigation process.

It is intended that this pre-action protocol will reduce the number of clinical negligence claims that are initiated.  In my own experience in the UK, where pre-action protocols have been in place for over a decade, I can recall only two cases out of approximately 500 cases, where matters were resolved in the pre-action stage.

What is the Pre-Action Protocol?

The exact terms of the Pre-Action Protocol will be set out in further regulations and to date we know that the regulations will include provision for:

  • Disclosure of medical and other records enquiring into or alleging possible clinical negligence
  • Setting out the allegations of possible clinical negligence
  • Responding to the allegations of possible clinical negligence
  • A timeframe for complying with the above steps

Failure to Comply with the Pre-Action Protocol?

Parties will be required to comply with the pre-action protocol before clinical negligence actions are brought. If either party does not comply with the protocol, the Court can direct that the matter proceeds no further until such time as it is protocol compliant. The Court also has discretion to allow the matter to proceed and apply penalties once an award has been made. Penalties for a non-compliant  plaintiff include deprivation of interest on any award made in part or in full and/or an order for costs in part or full in favour of the defendant. Equally, where a defendant fails to comply with the protocol, costs penalties can apply and the court can order the defendant to pay interest on all or part of the award at a higher rate than would usually apply.

Pre-Action Settlement Offers

Settlement offers made in the pre-action stages will need careful consideration as rejection can carry consequences for either side. Pre-action offers will be lodged with Court and given to the Judge after judgement. Where an award is made at a level equal or less than a defendant’s pre-action settlement offer, the Court can order that the plaintiff be deprived of interest on the award in part or in full. In the defendant’s case, where an award is made higher or equal to the plaintiff’s pre-action offer of settlement, the defendant can be ordered to pay a higher rate of interest. It remains to be seen whether cost penalties will apply for failing to beat a pre-action settlement offer or whether the penalty relates only to interest on awards.

Pressure on Plaintiffs

This provision puts enormous pressure on plaintiffs to have an accurate view on quantum from a very early stage in litigation. While it is possible in some rare cases to advise accurately on quantum at an early stage, this simply is not the case in the majority of clinical negligence cases. By their very nature, clinical negligence claims lean towards complex issues and the involvement of several experts.

Waiting times for reports from top clinicians can be lengthy as they juggle clinical responsibilities and expert witness duties; often consultations between experts are required with the added difficulty that most experts are based outside of Ireland. It will simply not be feasible in most cases to be in a position to advise a client on quantum in the pre-action stages. Clearly where long term care needs are a factor and several reports are required, I would hope that the Courts would exercise its discretion and not penalise plaintiffs for failing to obtain a higher award than a pre-action settlement offer in such instances where consideration of an offer was premature  in the absence of the necessary evidence.

My Own Experience of Pre-Action Protocols

Having practiced for several years as a Clinical Negligence solicitor in England where Pre-Action Protocols have been in place since 1998, I am somewhat doubtful that the introduction of this pre-action protocol will achieve all that the Government has outlined on its wishlist. It is however a welcome development to hopefully hasten what can often be a very lengthy process of litigation in medical negligence.

It is intended that this pre-action protocol will reduce the number of clinical negligence claims that are initiated.  In my own experience, I can recall only two cases out of approximately 500 cases, where matters were resolved in the pre-action stage. The first was a case without expert witness support and without merit and in all likelihood, a summary judgment would have obtained the same result after issue of proceedings.  The second case was a low value claim and as the Plaintiff was gravely ill from an unrelated illness, an early settlement was agreed. This experience would lead me to question claims that pre-action protocols in Clinical Negligence leads to early settlement in pre-action stages, what it does achieve though is forces parties to set out their case at an early stage which hopefully lead to earlier resolution than after the matter is set down for trial.

What the pre-action protocol in the UK does achieve however, is it gives the Defendant the opportunity to admit liability at an early stage and assists healthcare providers to attain focused clinical risk strategies with early identification and investigation of adverse incidents or near miss events. If the introduction of the clinical negligence protocol in Ireland can be used to this effect by healthcare providers, resulting in a reduction of repeat incidence, identifying trends and lower the injuries caused by clinical negligence at a local level, then the protocols will very much be positive change on more than just the legal cases.

Change in Attitude

I remain doubtful, however, that the introduction of this protocol will lead to less clinical negligence cases reaching trial or cost saving to the state. It is a change in attitude rather than a change in law that will yield results of reducing the time frame for cases and reducing costs. We see time and time again, the State Claims Agency, making admissions shortly before trial, or even at trial.

It appears that the rule is “deny first, ask questions later”.  It remains to be seen whether the introduction of this protocol will lead to a change in attitudes and to an increase in early admissions of liability. Unless other measures are introduced, such as a rigorous case management timetable for clinical negligence cases, and cost penalties for defendants insisting on defending the indefensible, the pre- action protocol may not achieve the desired result.

In my own view, if the government is seeking to lower the cost of clinical negligence, a more rigorous approach to clinical risk management is also needed to prevent these injuries in the first place.