Our €3bn medical claim bill must be tackled
We have one of the highest – and rising – levels of healthcare litigation in the world, yet legislation that could likely reduce it has been sitting idle since 2015
DEEP in the basement of Holles Street hospital, at the end of a long, narrow corridor, lies Professor Gabrielle Colleran’s office.
As head of the radiology department at Ireland’s National Maternity Hospital, you might think her place of work would reflect the status of her position.
But with half a dozen or so missing ceiling tiles, a haphazard shelving system on one side and a basic desk that faces the wall on the other, it’s nothing like what you’d imagine the office of an eminent consultant to look like.
‘Ah yes, the ceiling — when I’m on international Zoom calls I have to angle my camera carefully so it can’t be seen,’ laughs Prof Colleran. ‘This office is under the toilets, twice now the pipes have exploded with brown water. I’ve had to rescue all the books and folders, so no, not very glamorous. The title sounds snazzy, but as you can see...’
The room is dimly lit and up on two large computer screens are chest X-rays of a patient currently under her care.
‘Actually I have someone on the table right now,’ she says, making it clear she doesn’t have too long for this interview.
But she doesn’t need much time, a superfast talker, she’s also crystal clear when discussing causes and possible solutions for the staggering rise in medical negligence claims in Ireland over the last decade.
As the Irish Daily Mail revealed last week, figures released to Laois/Offaly Independent
‘There should be alarm bells... something is profoundly broken’
TD Carol Nolan showed that more than €3billion has been paid out to cover healthcare litigation since 2010.
The annual cost of claims jumped from €74 million in 2010, to almost €360 million in 2022, while figures from the beginning of this year up to mid-February show that €37,635,973 has been paid out so far.
It’s estimated if the current trend continues, negligence costs could rise to half a billion euro a year.
‘Legal fees and costs heading toward half a billion for this year alone should be raising alarm bells everywhere in Government,’ said Nolan. ‘Not just in the HSE and the Department of Health. Clearly something is profoundly broken here.’
The figures cover the total cost of defending medical negligence litigation against the HSE and Department of Health, including awards made in the courts or settlements made out of court to resolve disputes.
It’s an astonishing amount of taxpayers’ money — cash, which as several representative groups have repeatedly pointed out, could be used to fund other healthcare services, or help with the housing crisis.
But a situation has been allowed to evolve in which Ireland, along with the United States, is now a ‘global outlier’ when it comes to payouts for medical negligence claims.
Prof Colleran, who is also a consultant paediatric radiologist at Temple Street Children’s Hospital and vice-president of the Irish Hospital Consultants Association (IHCA), says the figures came as no surprise to anyone working in the area.
‘Ourselves and the US have always been outliers,’ she says. ‘But it does seem to have gotten worse in the last decade. It’s four times what it was in 2010, which is a huge jump.’
She points to a report released a few weeks ago by the Medical Protection Society (MPS), which assists and advises 300,000 healthcare staff members across the world, specialising in legal and ethical problems that arise from negligence claims and complaints. They have 16,000 members in Ireland.
Their study revealed a huge disparity in the length of time it takes to conclude a case in Ireland compared with other countries they work in.
An average claim here takes 1,462 days, which is 56 per cent longer than in the UK, where it takes on average 939 days.
A case in Hong Kong usually lasts about 940 days, just above Singapore at 938 days, while in South Africa it takes 1,279 days. But there are also huge disparities in legal costs; in Ireland the average case comes to €34,646, which is 250 per cent higher than in South Africa at €9,895, and 191 per cent higher than in the UK, at €11,911.
Not surprisingly, these big legal bills push up the overall cost of claims.
The MPS report found that in 2022 legal and expert costs (€84.9million) accounted for almost 23 per cent of Irish clinical claims, an 11 per cent increase on the year before. It’s believed this figure is set to increase.
Prof Colleran believes there are ‘unique’ elements of our health service that have made us ‘outliers’ in paying out vast sums of money in negligence claims.
‘It’s our bed occupancy, our bed capacity, our consultant numbers, which thankfully are now improving but are still very low compared to European averages, and then our waiting lists,’ she rattles off. ‘About 900,000 people are on waiting lists at the moment, so it’s all these things — anything that contributes to delays in care or understaffing. It’s all very well researched as having an impact on outcomes, so if you have more bad outcomes you’re going to have more legal cases.
‘Those are the hospital things. I personally think the biggest issue is the structure around how our legal system deals with these cases. It takes twice as long as it does in the UK and it costs almost twice as much.’
The Galway woman has intimate knowledge of the research done into Ireland’s rate of claims, she’s been a member of the consultant advisory committee for MPS for the last three years.
‘They are coming at it from the point of view of insurers and the doctors they look after,’ she acknowledges.
They’ve also looked at the knock-on effects of long-drawn out cases on the well-being of the doctors involved and how it’s
pushed some of them out of medicine or into early retirement.
‘The reality is it becomes a battle between the solicitors on the HSE side and the solicitors on the patient side,’ she says. ‘The patient and the doctor are at the centre of it. No doctor wants to harm a patient, in general they go into medicine because they are interested in it and want to help people. When there’s a negative outcome, of course there’s an impact on the doctor.’
She adds: ‘In the MPS report, they outlined doctors being really worried about the impact on their reputation; would people still trust them with their care? Because it’s so prolonged, the stress is hanging over them for a long time. It might be settled, it might not and if they go to court will people think they’re not competent?
‘One thing I found interesting was they also outlined how many doctors worried about the impact on their patient; how was it impacting them financially?
Were they able to go to work? What effect was the stress having on them?’
The main answer to speeding up and improving the overall process, she says, is the introduction of pre-action protocols, which have proved to be successful in other countries.
‘There are no controls over how long things take, and legal fees end up being almost a quarter of the entire costs, so it’s very high,’ she says.
She doesn’t know if Irish lawyers are charging more than their UK or Australian counterparts, but she believes because cases take so long here, they are involved for longer, which contributes to the high legal costs.
Reforms have been looked at by the State for well over a decade, and a working group, chaired by the former president of the High Court, Judge Mary Irvine, recommended in 2012 that ‘pre-action protocols’ be introduced to help speed up the process. Similar structures have been in place in Australia for some time.
‘Their number of claims dropped by 50 per cent and of the remaining 50 per cent the costs went down by 20 per cent,’ says Prof Colleran.
She adds: ‘It’s a structure where both parties, the plaintiff on one side and the HSE on the other, are instructed and incentivised to get into a mediation process early and share all information early, to minimise the delays and get to a settlement and a resolution quicker.
‘Because of that, the legal costs are much lower, and the patients get their compensation much earlier. We’re not reinventing the wheel, we just have to copy other countries where it’s working.’
Saving even some of that €3 billion would be of massive service to the Irish taxpayer, she says, but the push for change needs to come from the public.
‘I don’t think the IHCA, or the MPS or doctors speaking for this will effect change,’ she explains. ‘I think the Government needs to hear from the public and from patients’ organisations.
‘The system is actually very damaging for people as well as being way too expensive for what it is for the taxpayer.
‘It’s causing issues with doctor retention but also critically for patients who are injured and have legitimate claims. They should be getting it sorted and moving on with their lives.’
These protocols would also involve ‘fair limits’ for claims.
‘They would estimate care needs, costs and impact, and have set fees,’ explains Prof Colleran. ‘The MPS report also recommends having specialist judges, so you have the same group of people dealing with it.’
Frustratingly, she says legislation for the pre-action protocols has been ‘sitting there since 2015, it just needs to be enacted’.
She continues: ‘There have been multiple reviews, one by the retired High Court judge Peter Kelly, so lots of work has been done and the solutions are really clear, they’re not technically challenging and the structures are there in other countries, we just have to copy them.’
Every year the IHCA puts in a pre-Budget submission, highlighting the rising costs of claims.
‘We talk about the impact and what we can do to address it,’ says Prof Colleran. ‘Every time we also mention court reform and the need for pre-action protocols to bring the costs in line with the rest of Europe.’
There could, however, be unwillingness from some quarters to the introduction of new protocols.
‘With some patients and their solicitors, it’s someone they have an ongoing relationship with, and they might not want to push for something that they would perceive as potentially decreasing income,’ the professor explains
But most of those affected in medical negligence cases, she believes, are not driven by the possibility of big payouts.
‘When you actually talk to most families, they want to know that if there was a mistake that people learned from it and other people can be saved from it,’ she says. ‘A lot of people are very altruistic, it isn’t actually about the money, they want to see that the system will be safer and that there will be meaning to the loss they have experienced.’
A major ongoing issue, however, is available services for people with care needs, leading people to believe they have no choice but to go down a legal route in order to secure funds for healthcare assistance.
‘Access is huge,’ she says. ‘If we were able to say that all their needs will be met it would make a big difference.’
Although she thinks we are a litigious society, Prof Colleran doesn’t believe it’s necessarily part of our natural psyche.
‘I think it’s the situation we’re in,’ she says. ‘It’s culturally acceptable and common, but that’s something we can change.
‘It’s been allowed to evolve into this current system but if we can transition to pre-action protocols, where it’s streamlined, fair and appropriate, there’s no reason to think we wouldn’t be like Australia, where half those claims would melt away.’
She doesn’t want to ‘speculate’ about how many claims might be bogus.
‘But when I look at Australia, you have to wonder, would it be similar here, or even more, given we have a higher rate of claims?’
She adds: ‘The reality is that the HSE sometimes settles cases on the steps of the court not because of liability, but because the fiscal reality is that sometimes settling is cheaper than continuing, even if they win.
‘It’s prudent but it doesn’t actually discourage inappropriate claims.’
Ultimately, she feels a responsibility to push for an improved system.
‘So that it’s better not just for patients but the doctors and also for the taxpayer,’ she says.
‘We have a limited amount of money, and we have such needs in other areas, and I’d rather see it go there.’
‘Legal fees are almost a quarter of the entire costs’ ‘I’d rather see the money go to other areas with needs’