Ms Patricia Byron:

On the rationale for not proceeding down the non-adversarial route for medical negligence, there seems to be ongoing confusion about cause and effect. The effect can be quite a complex injury but that is for the medical people, not the lawyers, to determine. We would make an award when the medical reports were submitted, if we were handling that. Finding the cause is akin to investigating in a shop, an office or any other very determined environment. We also deal with public liability claims and if there is a hole in the street we have to establish whether, for example, Eircom, ESB or Bord Gáis opened it up. Those claims go through our board.

If one is in a hospital environment these people are in the hospital’s employment, and it has health and safety obligations to report and record. It is more a question of duty of candour where the culture does not position people to say they were in theatre and used the wrong implement or that there was a lack of oxygen for five seconds. The outcome of that cause can be very complex but that is for a medical person to determine and it is for us to put the figure on it. Cases where there is dispute over whether it was the implement used, the skill of the technician, the surgeon, the nurse or whoever, can be released to the courts, as now similar cases in respect of motor, public place and workplace claims are released.

At the moment the State uses its insurance company, the State Claims Agency, under motor, public place and workplace claims to go to litigation for contest cases, those it feels it can and should defend. For other cases, where it has identified itself as being in the circle, it uses the PIAB. Why would it not use that system for medical claims, especially when it has reserves of €600 million?