Introduction
Medical treatments are inherently risky. There are occasions when patients are harmed as a consequence of their treatment or absence of treatment. Patient compensation systems are a means by which two objectives can be pursued:
a) the cost of the harm can be transferred away from the patient (the “compensation” objective),
b) and the doctor can be given an incentive to take appropriate care to avoid making mistakes which may harm their patients (the “deterrence” objective).
All patient compensation systems attempt to deliver these objectives jointly with varying degrees of success, and with varying administration costs.
The two key design features of any patient compensation system are:
1) Eligibility: what must the patient prove in order to receive benefits?
2) Responsibility: who is immediately responsible for paying the benefits from a successful claim by a patient?
International studies have shown that the incidents of adverse events varies between 2.9% and 16.6% among hospital patients. Data has indicated that 50% of these events are considered preventable. 5% can contribute to death.
I am now going to discuss the procedures of the Injuries Board.ie and whether a similar type scheme called the Medical Injury Assessment Board (M.I.A.B) would benefit injured patients and save Legal Costs.
1. The Role of the Personal Injuries Assessment Board (Injuriesboard.ie)
The Injuriesboard.ie was set up as a statutory body in 2004 to provide for the independent assessment of compensation for victims of workplace, motor and public liability accidents. Anyone claiming compensation for personal injury in this State must first of all make an application to the Injuries Board.
Medical negligence claims and purely psychological claims are exempt from submission to the Injuries Board for assessment. Section 3(d) of the Personal Injuries Assessment Board Act 2003 specifically excludes claims “arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person”.
The exclusion then of medical negligence claims from the Injuries Board assessment process has caused the Government to consider extending the Board’s remit to include medical negligence claims to reduce litigation costs.
The Injuries Board operates a fairly straight forward application system. An application must be submitted to the Board within the statutory time limit which is two years from the date of injury. An application is submitted by completing a simple claim form, submitting that to the Injuries Board together with a medical report and a payment of €45.00. The Board then register the claim and notify the Respondent. The Respondent then has a period of 90 days from that time to either consent or decline an assessment in the matter. If the respondent consents, the Board then proceeds to make an assessment of damages.
2. How Assessments are Calculated
Assessments have a number of components covering some or all of the following:
• A sum to compensate for pain, suffering and loss of enjoyment of life.
• Specific losses such as past loss of earnings and medical bills.
• Future costs of medical care.
• Loss of earnings into the future caused by the injury.
Injuries Board assessments follow the Injuries Board book of quantum. However, assessments do vary and in particular can be far less than sums being currently awarded by Judges of the Circuit and High Court..
3. What Happens if the Respondent Refuses to Consent to the Injuries Board making the Assessment?
In this case the Injuries Board are obliged to issue an Authorisation which allows a claimant to issue legal proceedings.
4. Breakdowns of average award values in 2011 by Injuries Board:
Motor liability – £20,438
Employer’s liability – £27,102
Public liability – £22,686
Overall average – £21,339
5. Assessments Values 2011:
Total value of assessments – €209.83m
Total value of accepted assessments – €122.71m
Over 58% accepted assessments from the Injuries Board in 2011
The majority of cases assessed by the Injuries Board were for motor liability claims (77%), 15% for public liability and 8% for employer’s liability. 100% of cases were assessed within the statutory time frame in 2011. In that year the average time frame from the date of a Respondent consenting to the Injuries Board assessing the claim was 7.2 months. This compares with prior to the introduction of the Injuries Board where cases took on average 36 months to be resolved through the litigation system.
6. Time Limit for the Injuries Board to make the Assessment
Once the Respondent confirms that they are going to consent to the Assessment the Board has a period of nine months from the date it receives the Respondent’s consent to the assessment being made . Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the relevant claim concerned to make an assessment within the nine month period the Board can extend this period for a further six months (Section 49(4) of the PIAB Act 2003). If the assessment is not made before that date then, unless the claimant consents in writing to the Board to continue to deal with the matter, the Board will have to issue an Authorisation to allow the claimant to commence legal proceedings.
7. Statute of Limitations Frozen
One of the key advantages of the Injuries Board process is that Section 50 of the PIAB Act 2003 states that “in reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations Act 1957 under the Statute of Limitation (Amendment) Act 1991, the period beginning on the making of an application under Section 11 in relation to the claim and ending six months from the date of issue of an Authorisation shall be disregarded”.
This is very useful as it effectively gives claimants an additional two years under the Statute of Limitations. In many straight forward cases there is no requirement whatsoever for this additional period and it only prolongs the litigation. Compare this to complicated medical negligence claims which are dealt with under the existing Statute of Limitations two year period!
8. How many Cases might MIAB have?
542 new claims in 2011
430 claims resolved in 2011
Total amount of damages paid in 2011 – €81 million
Legal costs – over €43million
Medical negligence claims lodged in 2010 – 671
Medical negligence claims lodged in 2009 – 529
9. Clinical claims by speciality 2011
Obstetrics – 21%
Gynaecology – 4%
Allied professional services – 1%
Emergency medicine – 11%
Medicine – 1%
Paediatrics – 4%
Mental health – 2%
Radiology – 1%
Surgery – 31%
The number of Personal Injury Summonses issued in the High Court in 2010 for Civil claims apart from medical negligence was 7,068.
Over 84,000 medical accidents were reported in 2010. In simple terms for every 200 medical accidents reported only one legal action is commenced, why is that?
Traditional reluctance to sue one’s doctor.
Lack of legal aid.
Huge risks in terms of costs
Restrictive statute of limitations period.
Stress and Lack of knowledge of right to sue
10. What advantages will a medical assessment board have over traditional tort based system?
As the Injuries Board only assesses quantum issues and does not deal with issues of liability we can only assume that any new medical injuries board would be a no fault compensation scheme. An injured person would still have to establish that their care was below a reasonable standard and that this is what caused their injury. This will often raise very complex medical and legal issues. Medical negligence cases are often quite complex and involve difficult evidential issues.
The advantages however of any system could be as follows:
Could provide compensation to more patients at a much lower cost.
Could simplify the medical negligence procedure.
Could provide compensation without proof of provider fault.
Could provide a non-litigious low cost disposition and prompt service delivery.
Could lead to the extension of the statute of limitations period to enable further investigations to take place while the application is with the MIAB.
Would follow a book of quantum for previous medical negligence claims and awards.
Would not subject injured claimants to extensive scrutiny (Civil Liability Act provisions)
Would assist claimants in getting records and documentation (powers of Injuries Board to go to District Court to get Orders for Discovery).
Injuries Board would investigate and compensate for the injury.
Would be funded by State and MPS.
Could bring finality to the process quicker than old compensation system.
11. Disadvantages of proposed medical injuries assessment board:
One of the key issues is whether such a proposed board would have the ability to deal with such complicated cases. It is true that the costs of medical negligence claims has risen significantly over the past number of years. This is particularly true in birth injury claims. In cases where babies suffer cerebral palsy because of the negligence of doctors and midwives these cases can take up to 5 or 6 years to be resolved. The cases cannot be settled or listed for Trial until future care costs and treatment plans are established. The legal costs generally reflect the complexity and the seriousness of the cases themselves and by the fact that given the huge financial outcome of these Cases they are more often than not defended vigorously.. This all adds to the costs. Most Plaintiff lawyers are placed on full proof for every aspect of the case.
As most of the cases are managed by the State Claims Agency which is part of the National Treasury Management Agency (NTMA) compensation payable to victims and their lawyers is paid by the exchequer and indirectly by us as taxpayers. The proposal for the establishment of the MIAB to handle these types of claims has many disadvantages:
The Board if similar to the Injuries Board will simply not have the skill sets to deal with such complicated claims.
The new Board would only be assessing quantum issues.
It will not be a no fault compensation scheme.
An injured person will still have to establish that their care was below a reasonable standard and that is what caused the injury.
This often raises very complex medical and legal issues.
The imbalance between the parties at the commencement of the litigation will not be righted by any MIAB.
Would lead to an undoubted proliferation of claims such as slips, trips and fall, e.g. in 2010 26,288 slips, trips and falls were notified to the Clinical Indemnity Scheme.
No barrier to submitting the claim. Resulting in thousands of man hours and costs spent by MIAB investigating possible claims.
Statute being frozen could simply add another four years to the case
Lawyers would still have to investigate liability and the costs of same while the Board is waiting to hear back from the hospital or doctor concerned.
Will increase Section 12 type preservation applications and then more costs
Thousands of medication incidents occur in hospitals each year – these cases are likely to increase rapidly. Over a thousand medication incidents reported to the Clinical Indemnity Scheme in 2009.
No costs sanction and no scrutiny under the Civil Liability Act.
State Claims Agency would also have to thoroughly investigate all claims submitted.
Who will pay for the costs of the increase in claims?
Less Compensation for Injured Victims as could not be Lawyer Free Zone
As there are no details in relation to the proposed length of the MIAB assessment we can only speculate this scheme would only add significantly to the time it already takes to resolve these claims. This would only add further stress and trauma to injured patients who already feel aggrieved at the manner of their treatment.
12. Examples of the many experts needed to deal with quantum claims:
Experts on Quantum
• Vocation rehabilitation consultants
• Actuaries
• Economists
• Investment strategists
• Auctioneers
• Architects
Expert Reports Required to deal with causation and liability:
• Obstetric
• CTG specialists
• Midwifery
• Neonatologists
• Paediatricians
• Paediatric neurologists
• Neuro-radiologists
Condition and Prognosis Experts
• Paediatricians
• Neuropsychologists
• Nursing care
• Physiotherapists
• Occupational therapists
• Speech and language therapists
• Orthopaedic rehabilitation
13. Civil Liability and Courts Act 2004 – claimant’s not under the microscope!
The Civil Liability and Courts Act 2004 reduced the time within which the claimant can sue, set deadlines for the filing of pleadings and provided for the option of mediation. The objectives of the Act included the saving of time, reduction of costs but also to stamp out fraudulent claims. The Act now requires all parties in a personal injury action to swear an Affidavit of Verification, verifying the assertions and allegations contained in any pleadings. Any person swearing such an Affidavit must be advised that it is a criminal offence to make an Affidavit which is false or misleading or which a deponent knows to be false or misleading.
A Defendant can make an application to a Judge in a Personal Injury Case to dismiss a Plaintiffs Claim if he/she has given false or misleading evidence. That also includes instructions to a medical Doctor in an effort to exaggerate ones symptoms. This provision has been used many times recently in the High Court by Defendants with varying degrees of success .
14. Swedish Patient Compensation System
Since 1975 Sweden has had a patient insurance system to compensate patients for health related injuries. The system was traditionally based on a voluntary patient insurance solution but in 1997 it was replaced by the Patient Insurance Acts which covers both physical and mental injuries. About 10,000 cases are processed in the Swedish system annually. The patient claims panel is the authority that decides the levels of compensation.
It provides compensation on a no fault basis. Compensation is based on inappropriate care and avoidable injury. The PCI eliminates all personal liability of individual medical providers, doctors and hospitals. It is financed by the Swedish County Councils that provide medical care. Patients retain the right however to sue providers for medical negligence.
The Swedish system appears to have been very successful.
In the early 1970s only about 10 patients per year received compensation for medical negligence. This was the impetus to establish the patient compensation insurance scheme. The PCI benefits are comparable to the tort benefits in Sweden. The costs are passed onto the consumers through taxes levied to finance the medical care system. The PCI seeks to provide access to fair compensation to injured patients and to pre-empt tort claims. It also was established to stop the statutory expansion of tort liability in Sweden. Two necessary conditions that must be established for compensation under the PCI:
1) Proof of medical causation.
2) An injury that could have been avoided.
The injury must “depend on a decision or an act for which a medical provider was responsible”. Injuries, complications or undesired results of treatment which were unavoidable consequences of the basic illness or its necessary treatment are not compensatable.
The criteria for compensation explicitly excludes injuries that are within the normal risk of customary care.
There are five categories of injuries identified:
a) Real treatment injuries, e.g. nerve injury during surgery.
b) Unreasonably severe injuries for common illnesses, e.g. small boy 50% paralysed after an operation for a minor complaint.
c) An incorrect diagnosis, e.g. failure to diagnose cancer.
d) Infections ,e.g. MRSA.
e) Accidents , e.g. healthcare personnel responsible or if equipment is defective.
15. Exclusions to receive compensation
To receive compensation must have suffered:
Disability lasting more than 30 days.
Hospitalised for more than 10 days.
Death
Treatment costs and income loss more than $100.
Swedish statute of limitations is three years from the date that the patient became aware of the injury and it related to medical care but no more than ten years from the date of the act that caused the injury.
16. What are the compensation levels?
Similar to US tort system
Awards are less though!
Full compensation of income loss, medical expenses and non-economic.
Payments are determined by a schedule based on the severity of the injury and the age of the Plaintiff.
Maximum payment – $750,000.00
17. Who adjudicates?
Insurer consortium
Can appeal to patient claims panel.
Can go to arbitration.
18. What is the procedure?
Injured patient completes a simple form.
Available in all clinics and hospitals.
Files it with the insurance consortium.
Insurer’s claims adjustor reaches a decision without expert medical advice in most cases.
Claims adjustor must consult with a member of medical expert panel on issues of causation and extent of marginal damage.
19. What about legal fees?
No fees payable unless you go to arbitration.
20. What is the Future?
MIAB?
Extend statute of limitations period.
Introduce fully funded civil legal aid.
Medical negligence case management systems by the Courts.
Mediation.
Duty of candour.
Periodical Payments.
Liam Moloney, Solicitor
May 2012
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