Mr. Kevin O'Higgins:

I thank the committee for inviting the Law Society of Ireland to attend and for giving us an opportunity to make this short presentation. The Law Society represents almost 14,000 members who are entrusted to represent defendants and plaintiffs. In the context of today's discussion, solicitors represent the best interests of injured patients, health professionals, hospitals and the State. We are thus uniquely positioned to comment on the matters that are of concern to the committee. The Medical Protection Society, MPS, report on the cost of medical indemnity contained a number of statements that the society believes are erroneous and misleading. We are here to outline our commitment and active engagement on reforms that seek to create a culture of fairness, equality and justice.

The society was struck by the testimony of the witnesses last week and the relegation of the patient in their presentations. The economic interests of the MPS and consultants working in private practice must be measured against the welfare and rights of patients. Crude discussions on economic costs fail to encapsulate the human cost of medical negligence. The consequences for a plaintiff and his or her family arising from a catastrophic medical injury must always be at the forefront. The trauma, anxiety and financial impact must be acknowledged, appreciated and addressed. The root cause of medical negligence claims, quite clearly, is that medical negligence occurs. A patient who has been a victim of medical negligence is entitled to seek redress. The committee members are to be congratulated on drawing attention to the impact of hospital resourcing on patient safety. On behalf of patients and legal advisers on all sides, a focus on minimising these occurrences and creating a culture of safety is to be welcomed.

Based on the evidence and the case for balance, we would say that access to insurance on the part of doctors in the private sector should never trump the patients' access to justice. A balance must be struck between the commercial interests of insurance companies and medics, and a fair and just system for patients who have suffered harm. The State Claims Agency confirmed that the increase in the cost of claims handled by it in recent years was attributable to several factors, including the expanding remit of the agency, which now oversees the claims of 117 agencies and bodies. Another factor it cited was the spike in clinical claims in recent years arising from a number of specific actions. The agency also cited the effect of 2,500 consultants joining the agency's clinical indemnity scheme, CIS, from February 2004 and the effect of the judgment in Yun v.Motor Insurers' Bureau of Ireland (MIBI) and Tao, 2009, which increased the cap level of general damages in catastrophic injuries to €450,000.

Other contributory factors that the MPS, Irish Hospital Consultants Association, IHCA, and Irish Medical Organisation, IMO, omitted from their recent presentation include the level of market penetration MPS has in Ireland compared with other territories and how it impacts on its exposure. They also omitted to mention the extent of private medical care cover in Ireland compared with other territories and the expanding range and complexity of medical procedures undertaken by their members in recent years resulting in a higher risk profile. Unlike the SCA, the MPS chose not to disclose its claims outcomes, recovery of costs or litigating strategies, nor did it clarify its distribution of claims by specialty.

While it might seem counter-intuitive to many commentators, litigation can be a force for good. Professor Crown touched on this when he noted that there is such a thing as constructive litigation. While the injury should have been avoided, the transformative impact of litigation creates a more responsive and safe health care setting. Efforts to stifle or prevent claims from being taken serve no one, including doctors.

Less than 3% of CIS claims are resolved through the courts. The cases that go to court are generally those involving infant cerebral palsy or other catastrophic injuries. In recent years, the State Claims Agency has reduced the fees paid to solicitors and barristers by 25%. For solicitors working on behalf of plaintiffs, there have been similar fee pressures, with many reducing their fees by 30% to 50% in recent years. Other factors that impact on total cost include level of activity, VAT, the extensive number of expert reports required in medical negligence litigation and the increasing complexity of cases. In 2014, the SCA reported a saving of €97 million, inclusive of third party recoveries against projected costs. In 2013, these savings were €34.3 million.

In respect of the MPS's proposal to cap general damages, the MPS is cherry-picking from various sources. In Northern Ireland, the guide figure for general damages for a quadriplegic injury is between £400,000 and £575,000, which is much higher than the €450,000 cap on general damages for catastrophic cases in this jurisdiction. Also suggested by the MPS and endorsed by the consultant representative groups is the proposal to cap special damages, in particular future earnings and future care costs. On behalf of the patient, the Law Society asks why a patient who has already suffered immeasurably due to medical negligence should be penalised once more. Neither the MPS nor the consultant representative bodies referenced the deteriorating impact that lower interest rates and bond yields have on premia income returns.

The Law Society supports the proposed reforms of the working group on medical negligence and periodic payments. Reforms in the area of open disclosure promote a culture of openness and trust, where communication is the first step in resolving a claim. Delay does not suit either side, especially the patient who is seeking to move on from a traumatic period in his or her life, in so far as possible.

Delay can arise in respect of securing medical opinions, tracing medical statements and teasing through the complex issues of causation. In that regard the Law Society supports the recommendation of pre-action protocols where issues in dispute are identified much earlier in the process. Calls for shortened limitation periods, that is, the period within which a claim should be initiated, have a clear economic benefit, namely, more claims run the risk of being barred. The rights and circumstances of the patient should be carefully considered in any discussion on reducing periods. The Law Society believes access to justice for all parties to be paramount. In this case, barriers to accessing the courts system underscore the need for increased judicial resourcing and supports.

The Law Society appreciates the tension that might naturally occur between the parties to a claim and the impact claims have on the parties. The role of the courts and an ethical, professional approach on the part of the respective legal teams must seek to ensure a fair outcome in accordance with the law. The Law Society supports the existing judicial reasoning for both general and special damages with a particular focus on the rights to fair damages for the patient who has been injured through medical negligence. The Law Society reiterates its support for improved education and training, the roll-out of open disclosure policies and other reforms that operate to reduce medical errors and injury. In this regard, we support the duty of candour as a professional and ethical one.