Leading Dublin healthcare solicitor calls for change to the legal system in cases of clinical negligence

21 Sep 2016

A leading Dublin solicitor has called for an acceleration in the introduction of a new body of rules in the legal system governing clinical negligence claims in Ireland.

Nessa O’Roarty, partner at BLM says that the immediate introduction of pre-action protocol (PAPs), which has already been allowed for in The Legal Services Regulation Act 2015, would dramatically reduce both the length of time it takes to settle such cases and the associated legal fees.

O’Roarty says, “Clinical negligence cases are inherently emotive and the current length of time it takes to bring cases to a conclusion takes its toll on all parties emotionally as well as leading to high costs.  The Irish legal system needs to move now to establish the rules that have been in place in all our neighbouring jurisdictions for many years.” 

The current court system, according to O’Roarty, is the major stumbling block to parties having any realistic prospect of engaging in a meaningfully productive way at a relatively early stage. The reasons for this, is that  the court procedures do not require the parties to exchange expert reports until a very late stage in the proceedings, after Notice of Trial has been served and shortly before a court hearing.

However, if PAPs were in place claimants would be required to set out the nature and extent of their cases, including providing an outline of the content of expert opinion, before any proceedings are issued.

Many PAPs require parties to consider alternative dispute resolution (ADR) before proceeding to litigate through the courts. PAPS often require records to be automatically furnished by both parties enabling both parties to commence investigations pre-proceedings. O’Roarty says, “strictly speaking at the present time, clinical negligence claims should only be drafted and issued on the basis of expert opinions obtained. Each and every allegation pleaded should be supported by expert opinion and yet those same reports are not required to be furnished until often only months or weeks before a trial date”.  

Court rules in which litigation is pursued requiring the parties to append the reports upon which their respective pleadings are drafted, effectively furnishing reports  at early stages of court proceedings is something else that O’Roarty and colleagues would like to see.

“The delay in the parties reviewing their opponent’s reports directly impacts on each party’s ability to assess the overall merits of any claim, thus delaying decision-making and meaningful discussions between the parties. It also adds hugely to the overall costs in clinical negligence claims. There is overwhelming dissatisfaction by all parties involved with the current process and procedures, for a variety of reasons. There has also been widely publicised judicial criticism of the delay in legislating for “root and branch” legal system reform.

“In short, everyone would benefit from a system that promotes early investigation and engagement by both parties through both pre-action protocols and revised litigation procedures for clinical injury cases and ordinary civil cases going through the court system.

 ”Mediation, which is a better alternative to resolving complex and often sensitive disputes than a lengthy court process,” continues O’Roarty, “is another example of where the introduction of new rules would dramatically improve the process. The nature of the current legal system means that even mediation, which is the most popular form of alternative dispute resolution in Ireland, is deferred to a late stage in complex cases.

“We know from reported experience in other jurisdictions that approximately half of all non-catastrophic injury cases in the clinical negligence arena can be resolved in pre-proceedings through mediation or negotiation, resulting in either settlement or abandonment of a claim at a very early stage. Mediation can also help preserve reputations and relationships as well as providing a sense of ‘being heard’ within a legal process in which the parties themselves can often feel overlooked.

 “There is a better way for dealing with complex, highly emotive and often highly-publicised clinical negligence claims which would provide a better and more efficient experience for all parties involved and we need it now.”

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Nessa O'Roarty

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