SPEAKING NOTES FOR PRESENTATION BY BAR COUNCIL OF
IRELAND TO JOINT COMMITTEE ON HEALTH AND CHILDREN:
PROFESSIONAL MEDICAL INDEMNITY INSURANCE ISSUES
27 January 2015
1. Introduction
Bar Council represented by Chairman, David Barniville SC, and Member /
Treasurer, Sara Moorhead SC.
2. Purpose:
To assist the Joint Committee on its deliberations on issues relating to rising
costs of professional medical indemnity insurance.
3. Balance:
Critical to ensure balance in the debate: Balance between the interests of
patients who have suffered due to acts of medical negligence, and their families,
the interests of medical professionals involved and the interests of their insurers
/ indemnifiers. There is also a public interest.
4. Role of the Bar Council / Barristers’ Profession:
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Bar Council – Governing body for barristers.
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Barristers act for plaintiffs and defendants. Views of barristers acting on
both sides sought for the purposes of Bar Council’s submission to Joint
Committee.
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The Bar in Ireland is an independent referral bar: Barristers are instructed
by solicitors in cases.
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Medical negligence work (on both sides) is complex and difficult and
requires a high degree of specialisation on the part of the barristers
working in these cases.
5. Medical negligence claims:
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MPS Report: Raises procedural issues and substantive issues.
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(1) Procedural Issues:
Bar Council agrees with many of the recommendations / statements in
MPS Report on procedural matters including:
(a) Delays: Bad for patients, clinicians, lawyers and society.
(b) Duty of Candour: Bar Council agrees. Ideally, it should have statutory
force as well as ethically / professional underpinning.
(c) Recommendations to address delays: Three Reports of Working
Group on Medical Negligence and Periodic Payments. Bar Council
agrees with all recommendations:

Periodic Payment Orders:

Pre-action protocols

Case management of cases.

Enact legislation and amend Rules of Court to implement these.
(d) Other Issues:
- Bar Council disagrees with assertions in MPS Report re tolerance
by the Irish Courts of unmeritorious claims or that cases are run
without expert evidence (this is precluded by the Code of Conduct
of the Bar of Ireland).
- Bar Council disagrees with statement that lawyers turn to medical
negligence during economic downturn. No evidence that that is
the case. Particularly not so in the case of barristers. Highly
specialised nature of the work.
(2) Substantive Issues:
MPS Report: Bar Council does not agree with the recommendations /
proposals in MPS Report on substantive matters. In particular:
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(a) New definition of tort of clinical negligence: This is entirely
unnecessary. The existing substantive law of negligence (including
medical) is adequate and does not require any such change. MPS
Report is wrong in its statement concerning absence of causation
analysis by Irish Courts. Some cases run on causation issue only.
(b) Caps on general and special damages: Bar Council fundamentally
disagrees with the MPS recommendations. There is already a cap on
general damages (which is not out of kilter with such caps in other
jurisdictions such as Northern Ireland and England and Wales). A cap
on special damages would be fundamentally unfair to the injured
patient.
(c) Reduction in limitation period: Already reduced from 3 to 2 years.
Bar Council disagrees with this recommendation on limitation
periods.
(d) Caps on costs: Bar Council disagrees with the MPC. Risk of serious
obstacle to access to justice (see comments below on professional
fees).
6. Barristers Professional Fees:
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Case completely overblown by MPS and others. Barristers fees represent
a small percentage of overall award and costs. Suggestion that such fees
can explain apparent increase in level, amount or costs of claims or affect
sustainability of private practice for doctors is incorrect.
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Plaintiff side: Typically barristers (and solicitors) acting for plaintiffs do so
without any guarantee of payment and will be paid only if case succeeds
and if costs are awarded and paid by the defendant doctor’s indemnifier.
This can be many years after the work has been done. If the case fails (or
example, on causation) they will not be paid. In the event of a dispute on
fees, the level of fees can be and are negotiated. If there is still no
agreement, they can be challenged before the Taxing Master. The Taxing
Master determines whether the fees are reasonable in light of the work
done, complexity of the case etc. Taxing Master’s decision can be
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challenged in the High Court. Proposals for greater transparency in costs
adjudication and other costs provisions in Legal Services Regulation Bill
have been supported from the outset from the Bar Council.
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Defendant side: Barristers on the defence side typically agree to work for
fees fixed by the client (MPS etc). SCA Tender initiative in 2012. Fees
reduced by at least 25%.
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Overall barristers’ fees significantly reduced from pre 2008.
7. Concluding Points:
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Discussion on managing cost of clinical negligence is important but there
must be balance in the debate. The interests of patients and their
families must not be forgotten. Medical negligence cases can often lead
to an improvement in patient safety.
8. Summary:
- In summary, the Bar Council
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supports:
(a) “open disclosure” and a “duty of candour” on the part of medical
professions;
(b) the requirement for pre-action protocols in medical negligence
cases;
(c) active case management of cases in the courts, subject to the
necessary resources being available to the courts;
(d) the enactment of legislation to give effect to the
recommendations of the Working Group on Medical Negligence
and Periodic Payments;
(e) the enactment of the costs provisions in the Legal Services
Regulation Bill to provide for legal costs adjudicators and a more
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efficient and transparent system for the review and adjudication
of legal costs.
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does not believe:
(a) that there is any basis for the suggestion that unmeritorious
claims are not discouraged or that plaintiff lawyers run cases
without expert support until the last moment;
(b) there should be reform of Irish tort law specifically to define the
tort of clinical negligence or to include a specific requirement of
causation since causation is an essential element of the law of
negligence as it stands;
(c) that there is any requirement for a reduction in the limitation
period for medical negligence cases;
(d) that a cap on special damages would be appropriate.
Dated: 27 January 2015
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