Professor Trevor Duffy:

The IMO would like to thank the Chairman and the committee for the invitation to present our views today on how to tackle the rising cost of professional medical indemnity insurance. I will not rehearse the increases outlined by both the State Claims Agency and the MPS, nor the impact this is having on current private practice as outlined by Mr. Varley. While we recognise that there has been an increase in both the quantity and size of settlements in recent years, an inefficient and lengthy legal process has been blamed for the rise in claims costs. Recommendations to make the litigation process more efficient and less costly are welcome and necessary in the immediate term; however, the IMO is of the view that in order to reduce the cost of claims, litigation should be a last resort after all other avenues have been explored. We firmly believe that any system of negligence should have the primary aim of improving the quality and safety of clinical care. In our view, litigation is not good for the patient, the doctor or the State. Patients have often experienced significant trauma or injury as a result of an adverse event. For many patients, lengthy and expensive court proceedings are often the only recourse available to them in order to receive an explanation and compensation for what happened and to ensure appropriate long-term care and support. This process can subject the patient to a considerable level of emotional stress and may serve to aggravate the patient's condition.

Doctors are often the second victims of an adverse event. The majority of doctors undergo a significant level of emotional stress as a result of litigation and fitness to practise procedures that accompany litigation. Fear of damage to their reputation and loss of livelihood can impact on a doctor's psychological and physical health, resulting in anxiety, depression and an exacerbation of existing health problems.

In addition to the growing cost of claims experienced by the State Claims Agency, the consequence of an adversarial litigious system is that doctors will often practise defensively, such as ordering more diagnostics or treatment than necessary, or they may avoid treating certain high-risk patients. For some it may lead to early retirement, or they may discourage others from entering the profession.

The majority of health care professionals aim to provide the best care for their patients. Rarely is harm due to wilful misconduct. Most often, harm is due to systems failure or unintentional human error. Alternatives to legal proceedings should be explored. Court proceedings can often be avoided if there is full and open disclosure, including an apology, following an adverse event. Fear of litigation is a major barrier to frank apology and communication with patients following an adverse event, and health care staff are often the second victims of such events. We have been awaiting the publication of the health information Bill since 2006, which was intended to provide protection to a health professional from admitting liability when apologising. This would be a major step towards promoting open disclosure and changing the culture of adversarial litigation following an adverse event. Rather than focusing on apportioning blame, open disclosure policies should support patients and doctors and focus more on learning from adverse events in order to reduce harm and improve patient safety.

The Government could consider the introduction of a no-fault claims system for certain cases. While the UK rejected a no-fault claims system for fear it would increase the number of claims, other countries such as New Zealand and the Scandinavian countries have had no-fault systems in place since the 1980s. Under no-fault claims systems it is no longer necessary to prove clinical negligence but patients must prove that the treatment or medical process caused harm. There is generally some guidance on compensation payments and in some countries the system is limited to certain types of injury. Since introducing a no-fault claims system in 2004, court proceedings for clinical negligence in France have been reduced to one third.

There is a need to promote alternative dispute resolution mechanisms such as mediation, arbitration or collaborative practice. Collaborative practice requires the patient and his or her family, health care professionals, solicitors and insurers, to commit to an open and transparent resolution of the dispute without going to court. In the event that clinical negligence cases end up in the courts, a number of organisations and groups have recommended changes to tort law and the litigation process in order to speed up the process and reduce the cost of litigation. The working group on medical negligence, litigation and periodic payment orders, chaired by Mr. Justice John Quirke and subsequently by Ms Justice Mary Irvine, has made recommendations to the Government on periodic payment orders, pre-action protocols and case management rules. The Law Reform Commission recommended that tighter limitation periods for commencing legal proceedings could reduce the cost of insurance. In addition to these measures, MPS has recommended that the tort of clinical negligence should be more clearly defined; that limits are placed on damages awarded; that a certificate of merit should be introduced to ensure only meritorious cases are brought forward; and that a cap is placed on lawyers' fees for smaller-value cases.

Furthermore, we believe that health services in Ireland have been subject to unprecedented budget cuts over the past six years with no measurement of the impact of these cuts on patient safety. Between 2008 and 2014, health service funding has been reduced by 27%, or approximately €4 billion, while staffing levels have been reduced by 11%, or nearly 13,000 whole-time equivalents, since peak levels in 2007. In the same period, the number of acute hospital beds in the system has decreased by 1,631, or 13%. In the meantime, demand on the hospital system has risen, with emergency department, inpatient, outpatient and day-case activity increasing steadily. Under-resourcing and understaffing are regularly cited as contributing to major adverse events. A study from Germany found a tipping point estimated at 92.5% bed occupancy whereby clinical staff become more prone to error due to rationing of resources and elevated stress levels. The impact of political financial decisions on patient safety must be recognised and financing and staffing levels must be restored to stabilise the hospital system.

We believe in an automatic entitlement to health and social services for people with disabilities. People with disabilities should have automatic entitlement to health care and social supports, including access to community therapy services afforded by a medical card in order that patients and their carers are not required to sue to ensure appropriate long-term care and support.