Claim that medical negligence hearings are becoming ‘mini trials’

Medical negligence lawyers are “subverting” a system for regular compensation payments to victims of catastrophic medical injuries by making excessive claims, according to the State body that handles claims against hospitals.

Plaintiff lawyers have "bogged down" the system of periodic payment orders by turning each court hearing for an order into a "mini-trial", Ciarán Breen, chief executive of the State Claims Agency, says.

The agency is concerned that legal payments to third parties are on the rise when its own legal costs are falling. Mr Breen attributes the trend to “a pattern of high costs” in catastrophic injury cases, particularly around periodic payment orders. Some legal firms are claiming legal fees as much as 60 per cent of the value of the order made in favour of the injured person, according to Mr Breen. In one recent case, lawyers for a person who received a third payment order worth €3.7 million sought fees of €2.2 million.

“A really good alternative to lump sums and one that would benefit families has been subverted by this mini-trial approach,” he says. “It has frustrated us that our attempts to provide greater certainty for families have been bogged down like this.”

He also says lawyers are “implacably opposed” to the option of mediation for resolving differences. Mr Breen’s claims are rejected by lawyers representing families of people with lifelong care needs caused by medical injury. They say they have been forced into “trench warfare” over costs because of “penny-pinching” by the State.

Michael Boylan, chairman of the Medical Injuries Alliance, agrees the hearing of periodic payment orders has turned into "mini-trials". He blames this on a "highly adversarial" approach by the agency about specific care costs. He says the agency offers mediation too late for it to be an effective or viable option.

There are also disagreements about indexation of awards; legislation is expected to tie this to the cost of living but lawyers say it should be linked to the cost of labour because this is the biggest component in care costs.

Periodic payments orders were introduced after judges expressed concern that families were suffering hardship after their lump sum for a catastrophic injury ran out. The idea is that payments spaced out over time are fine-tuned to care needs to ensure families are not under- or over-compensated. The system remains on an ad-hoc basis since it was introduced in 2010 because of a delay in passing legislation.

Cork solicitor Ernest Cantillon says the rows are turning families off periodic payments. "They want to be shot of it in one go rather than embroiled in perpetual litigation about how many hours of physio they are entitled to."

Mr Breen rejects claims that the agency, along with the HSE, is to blame for delays in settling injury cases. The agency takes an average of just over two years to process claims, he says.

One reason for the delays is overclaiming by lawyers, he says, citing one case where solicitors sought €25 million for a client but settled for €9 million.