250% rise in medical protection costs in a decade shows negligence litigation system ‘not working’

A 250 per cent hike* in medical protection costs concerning claims in obstetrics/gynaecology over the past decade, along with huge settlements and awards, show the clinical negligence litigation system “is not working for anyone”, a former master of the National Maternity Hospital has told a seminar of doctors and lawyers.

Addressing a perception that some expert witnesses from the UK are “hired guns” in clinical negligence litigation here, Prof Declan Keane welcomed an initiative by the Medical Protection Society (MPS) to encourage and train more doctors here to become expert witnesses.

There is a “real need” for experts to be working in Ireland because they understand the context and actions of the doctor within the system, he said.

A consultant obstetrician and gynaecologist, Prof Keane said the current tort system is “not working for plaintiffs, defendants, doctors, nurses and the taxpayer, it is not working for anyone”.

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[ ‘Hired gun syndrome’ a risk with expert witnesses, judges warn ]

The average cost to the MPS concerning claims in obstetrics and gynaecology between 2012-22, including all defence payments, legal fees and damages, rose from €57,000 to €200,000, he said.

Figures from the State Claims Agency over the same period show settlements and awards, particularly for cerebral palsy cases, increased considerably, he noted.

Recommendations by the Law Reform Commission (LRC) in reports in 2008 and 2016 aimed at improving the quality of expert evidence have not been advanced by Government, he said.

[ Experts are ‘independent’ in personal injury cases, solicitor says after judge criticism ]

Some experts from the UK who give evidence here have been retired for some time, he said.

A Supreme Court judge, Mr Justice Maurice Collins, said a ‘hired gun’ culture here “is changing bit by bit but has by no means being eradicated”. The primary duty of the expert is to the court, not the party who retained them, but that “unfortunately” has not yet been absorbed by all involved in litigation here.

He stressed the value of expert evidence, describing it as “frequently indispensable” to the just resolution of cases.

Arguably, the most serious challenge presented by expert evidence is the usurpation or perhaps the overwhelming of judicial decision making, he said.

The LRC recommendation that experts be required by law to state the facts and assumptions, and any underlying scientific methodology on which their evidence is based, so that a judge or jury can come to their own independent conclusion, is a “valuable” recommendation the Oireachtas or the superior courts rules committee “would do well to progress”.

The test for the courts is to make use of expert assistance without being overwhelmed or surrendering their adjudicative responsibilities to experts, he said.

He and Prof Keane were among several speakers at a seminar on expert evidence, organised by the Medico-Legal Society of Ireland, at the King’s Inns in Dublin on Saturday.

The Medical Protection Society (MPS), which is not an insurer but provides protection and support services to some 16,000 doctors, dentists and healthcare professionals in Ireland, published a policy paper aimed at raising the standards of expert evidence here and encouraging doctors here to become expert witnesses.

The Irish court system needs a wider pool of medical expert witnesses, made up of clinicians actively practising in Ireland, who have undertaken expert witness training, if it is to increase the quality of expert reports and help drive out so-called “hired gun bias”, the MPS said.

Dr James Thorpe, MPS deputy medical director, said, given the importance of expert work, it is concerning there are difficulties in finding “appropriately qualified” doctors to undertake it. “Instruction often relies on word of mouth, and there is no central register.”

A 2016 LRC report highlighted conscious bias, where parties, including those looking to build a case against a doctor, shop around for an expert that fits their case, he said. The barriers to undertaking expert work, including time constraints, and a wariness of and unfamiliarity with the legal system, mean doctors who take on expert work are often at the end of their careers and some have been out of clinical practice for a considerable time, he said.

With high-quality medical expert training and education on their duties, established doctors should be able to provide impartial expert opinion, based on up-to-date guidelines and current evidence, as to whether care provided was of a reasonable standard, he said.

The HSE, Dr Thorpe said, should support doctors who wish to train and participate in medical expert work and maintain a list of individuals with expertise in different specialities. The MPS also wants the Medical Council to produce specific guidance for doctors acting as expert witnesses.

* This article was amended on March 1st to clarify the order of the increase in costs as an incorrect figure of 350 per cent had originally been provided by the Medical Protection Society.