Medical Negligence. Ireland’s Outlier Status

Despite decades of effort by the European Union to mitigate the cost burdens associated with medical and clinical negligence claims, the issue remains a prominent concern in most EU member states. The increasing interconnectedness of healthcare systems and policies across the EU complicates the situation, as each member state must navigate both its unique healthcare challenges and the shared objectives set at the EU level.

The European Commission’s response to the challenges posed by medical negligence dates back to April 2005 with the adoption of the “Luxembourg Statement on Patient Safety.” This initiative provided recommendations for patient safety improvements at various levels, including EU-wide, national, and healthcare provider-specific guidelines. Shortly after, the Directorate-General for Health and Consumer Protection launched a Eurobarometer survey examining medical errors across EU member states, candidate countries, and even the Turkish Cypriot Community.

Persistent Concerns Across Europe

Eurobarometer’s findings underscored a deep-rooted concern about medical errors in Europe. Nearly 4 in 5 EU citizens (78%) perceived medical errors or negligence as a significant issue in their respective countries. Among respondents, 38% rated it as “very important,” while 40% considered it “fairly important.” Only 20% of responses fell into the “not important” category, with a mere 3% indicating that medical errors were of no importance whatsoever. However, views varied significantly across countries; in Italy, 97% of respondents saw the issue as important, compared to just 48% in Finland. This disparity reflects differing experiences and expectations around healthcare quality, which influences how citizens perceive the importance of addressing medical negligence.

In Ireland, for instance, the difficulties arising from the government’s failure to adequately respond to and reduce medical negligence cases have been a source of concern for influential organizations. The Private Hospitals Association of Ireland (PHA) has noted that Ireland’s medical negligence costs are far above those in other EU countries, branding the country an “outlier.” The financial toll of defending medical negligence cases in Ireland from 2010 to 2024 has surpassed €3 billion.

Escalating Costs in Ireland

Data provided by Ireland’s Minister for Health, detailing payments under the Clinical Indemnity Scheme, sheds light on this financial strain. In total, Ireland’s healthcare sector has spent €3,078,490,039 in the period between 2010 and 2024 (up to February 2024). These costs encompass damages, legal fees, and expert consultation fees. The expenditures reflect not only compensation for patients who experienced medical errors but also the high cost of defending these claims in court.

The State Claims Agency (SCA) oversees the management of personal injury claims for delegated state authorities, including the Health Service Executive (HSE). By using the National Incident Management System (NIMS), the SCA compiles and reports data on incidents, contributing to a more structured approach to managing claims. However, the high financial cost remains a significant burden, and resolving cases in Ireland tends to be a slower and more complex process than in other nations.

Lengthy Resolution Processes in Ireland

The Medical Protection Society (MPS), a leading protection organization for healthcare professionals, reported that negligence claims against healthcare providers in Ireland take longer to resolve than those in any other country where MPS operates. On average, a medical negligence claim in Ireland takes 1,462 days to resolve. This is 14% longer than in South Africa and 56% longer than in the UK, Singapore, and Hong Kong, where claims typically conclude in approximately 940 days.

The prolonged duration of claims not only affects the financial costs but also has significant emotional and psychological impacts on both patients and healthcare professionals. An MPS survey of 200 healthcare professionals who had experienced a claim within the last five years found that the process was highly stressful, often resulting in anxiety, depression, and a withdrawal from practice for some. Patients, too, endure an “excruciating” and “traumatic” process, which often feels unnecessarily prolonged and adds “insult to injury.”

Financial Disparities and Reform Proposals

The financial toll of medical negligence claims in Ireland is similarly high, with MPS data indicating that the average legal costs per claim are €34,646—substantially higher than in other countries. For example, claims in Ireland are 26% more expensive than in Singapore (€27,449), 56% more expensive than in Malaysia (€22,158), and 191% more expensive than in the UK (€11,911). In South Africa, costs per claim average €9,895, making Irish claims 250% more costly. This disparity underscores the inefficiencies within Ireland’s claims process and has spurred calls for reform.

To address these pressing issues, MPS has proposed three key reforms aimed at improving the efficiency and effectiveness of Ireland’s medical negligence framework: pre-action protocols, case management, and specialist courts and judges.

1. Pre-Action Protocols
   Pre-action protocols establish guidelines that encourage early information exchange, aiming to resolve claims before they reach the courts. Such protocols would outline the necessary steps and conduct expected from each party, potentially leading to faster settlements outside the courtroom and reducing the duration and cost of claims. In 2012, the Working Group on Medical Negligence and Periodic Payments, chaired by Ms. Justice Mary Irvine, initially recommended pre-action protocols in Ireland. However, progress has been slow, with further support from a 2020 Expert Group report chaired by Mr. Justice Charles Meenan.
2. Case Management of Claims
   MPS also advocates for a proactive, court-led case management system, which would help ensure that claims proceed without unnecessary delays. In an MPS survey, 96% of respondents supported the introduction of a case management system in Ireland’s High Court, wherein parties would be held to reasonable timelines. Such an approach could provide structure to the claims process, limiting its emotional toll and financial costs.
3. Specialist Courts and Judges
   Establishing a specialist professional indemnity or clinical negligence court in Ireland would streamline the process even further. By employing judges with specific expertise in medical negligence, this court could create more consistency in handling cases and setting damages. Such specialist courts, as seen in Scotland’s All-Scotland Personal Injury Court, have contributed to swifter resolutions and more standardized procedures.

Urgent Need for Legislative Action

Although these recommendations have garnered support from healthcare organizations, including the Irish Hospital Consultants Association and the Royal College of Surgeons in Ireland, progress remains stalled. In November 2021, MPS organized a joint letter to the Minister of Justice, advocating for pre-action protocols, which was signed by several prominent Irish healthcare associations. Despite these efforts, the necessary legislative actions have yet to be implemented, perpetuating the inefficiencies and high costs that characterize Ireland’s medical negligence framework.

The MPS has further suggested that pre-action protocols be introduced immediately under Section 219 of the Legal Services (Regulation) Act 2015. This would be a crucial first step toward reform, yet, as of early 2024, the government has not moved to activate these provisions.

Ireland’s Position as an EU Outlier

Ireland’s continued status as an “outlier” within the EU in terms of medical negligence costs and claim duration underscores the urgent need for comprehensive reform. Evidence from other jurisdictions illustrates that pre-action protocols, proactive case management, and specialist courts can effectively reduce the time and financial burdens of medical negligence cases, benefiting both patients and healthcare providers.

If Ireland fails to implement these reforms, it risks further overburdening its healthcare system with escalating legal costs, while both patients and healthcare professionals suffer through a needlessly prolonged claims process. Implementing the MPS’s recommended changes could transform Ireland’s approach to medical negligence, offering more timely resolutions, reduced costs, and a less stressful experience for all parties involved. Without such reforms, however, Ireland will continue to stand as an outlier, with one of the most costly and inefficient medical negligence systems within the European Union.