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Introduction
Our 2024 Healthcare Law Review examines notable developments to occur in the sector throughout the year and considers the implications and key learnings from significant case law.
Healthcare Developments
Report on the Rising Cost of Health-Related Claims in Ireland
Case Law Developments
Crumlish v HSE [2024] ECA 224
Germaine v Day [2024] IEHC 420
O’Neill v Birthisle [2024] IECA 17
Collins v Parm & Ors. [2024] IECA 150
James v Halliday [2024] IEHC 281
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Report on the Rising Cost of Health-Related Claims in Ireland
2024 saw the release of the Department of Health’s Interdepartmental Working Group on the Rising Cost of Health-Related Claims Report (the “Report”). Published on the 19th of September 2024, the Group which completed the Report was chaired independently by Professor Rhona Mahony and comprised of membership from across relevant Government Departments and Agencies, including the National State Claims Agency, National Patient Safety Office, and the Health Service Executive (the “HSE”).
Strategic Priorities
Six strategic priorities were identified in the Report, with the aim of reducing and streamlining the litigation process in the healthcare sector. These are as follows:
Capturing accurate data, learning from adverse events and promoting key research
Prevention of adverse events: strategy, people and resources
Enhanced response when harm occurs
Care for babies born with neonatal encephalopathy and the other maternity initiatives
Faster and more efficient resolution of claims
A standardised approach to mass action claims
The Report notes that despite the overall fall in claims annually, the estimated outstanding liability for healthcare claims in Ireland has risen by 64% between 2018 and 2022 from €2.8bn to €4.6bn, representing an average rise of approximately 13% per year.
Report Recommendations
Several recommendations were identified to reduce the cost of claims, including the development and implementation of a pre-action protocol (“PAP”), case management rules and stabilising issues regarding the Real Rate of Return. The Report also focused on learning from the experiences of patient and healthcare workers, while monitoring and improving patient safety and reducing incidents of harm and minimising risk.
The overall goal of the recommendations made by the Group is to significantly reduce human suffering and the financial cost associated with healthcare litigation in Ireland. The Report has been widely welcomed and it is hoped that it will finally provide a roadmap for long awaited reform in the area of healthcare litigation.
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Mandatory Open Disclosure: New Era for Irish Healthcare
The Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023, which came into effect from 26 September 2024, introduced a mandatory open disclosure for specific notifiable incidents in Irish healthcare.
The Act includes the first legal requirement for healthcare providers to disclose such incidents to patients, and it obligates the HSE’s cancer screening services to inform patients of their right to request a review of their screening.
The Act builds on previous voluntary disclosure initiatives, making open disclosure mandatory while maintaining legal protections for healthcare providers.
Implications of Mandatory Open Disclosure
The introduction of the Act and the incorporation of mandatory disclosure requirements signals a positive shift in both patient care and the healthcare provider’s approach. The legislation’s broader objectives are meaningful in seeking to transform the prevailing culture, foster transparent communication about serious incidents and ensure better accountability in the Irish healthcare sector.
Further Information
Our article Open Disclosure Requirement in New Patient Safety Act 2023 outlined the key amendments to the legislation and our most recent article Mandatory Open Disclosure: New Era for Irish Healthcare examines the open disclosure notification process and the consequences of non-compliance.
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Crumlish v HSE [2024] ECA 224
In the case of Crumlish v HSE [2024] ECA 224, Ms. Crumlish claimed that there was a failure to detect and diagnose her breast cancer in May 2017. She alleged that a delay in diagnosis of 5 months resulted in her having to undergo more extensive treatment than she otherwise would have required, had her breast cancer been detected earlier.
The High Court
The High Court proceedings focused on the expert oncology evidence in relation to the growth rate of the tumours and whether they were, in fact, detectable in May 2017 by doctors in Letterkenny Hospital.
Ms. Crumlish’s expert relied on an academic paper from 1993 which considered the doubling time for breast cancer tumours in women. Whereas the defendant’s oncology expert was of the view that on the basis of one measurement only, there was no reliable scientific basis for predicting the size of a tumour. The defendants contended that the cancer was found at a different position and that there was no negligence in declining to perform a biopsy in May 2017.
Justice Mary Rose Gearty was critical of Ms. Crumlish’s experts use of confirmation bias in selecting a doubling time calculation to suit Ms. Crumlish’s claim, together with the over reliance on an outdated and limited peer paper. Having regard to the evidence, the court found that the doubling time for the appellant’s tumour was probably faster than contended for by Ms. Crumlin and so the larger lump which she felt in May 2017 was probably a cyst and was not the tumour found in October 2017. As a result, her case was dismissed.
The Court of Appeal
In dismissing her appeal, the Court of Appeal disagreed with Ms. Crumlish’s claim that the trial judge’s failure to explicitly refer to certain evidence meant that she had ignored, overlooked or failed to consider the evidence on both sides. Justice Noonan stated that the reasons for the court’s decision are plain to see from the judgment.
Conclusion
This case highlights the importance of reliable and up-to-date expert evidence in Medical Negligence cases.
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Germaine V Day [2024] IEHC 420
The High Court in Germaine V Day [2024] considered a claim for nervous shock as a result of the misdiagnosis of the husband of the plaintiff. The plaintiff sought to recover damages for nervous shock that she alleged was sustained immediately before, and as a result, of the death of her husband from lung cancer.
Test for Nervous Shock - Kelly v. Hennessy [1995] 3 IR 253
The court considered the test for nervous shock in Kelly v. Hennessy [1995] 3 IR 253 which sets out the criteria to succeed in a claim for nervous shock whereby a plaintiff must:
1. Establish that they suffered a recognisable psychiatric illness
2. Establish that their recognisable psychiatric illness was shock-induced
3. Prove that the nervous shock was caused by the defendant’s act or omission
4. Prove the nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff and
5. Show that the defendant owed them a duty of care not to cause them a reasonably foreseeable injury in the form of nervous shock.
Second and Third Criteria
The plaintiff did not succeed in her case as she was unable to show that her recognisable psychiatric illness was shock-induced. The Court found that there was no “sudden calamitous or horrifying event in the nature of an accident”. The Court did not accept the plaintiff’s argument that her injury was caused by not learning of her deceased husband’s diagnosis at an earlier stage so as to allow her to prepare for witnessing his deterioration.
The Court concluded that the defendant’s negligence did not cause the deceased’s deterioration, which is alleged to be the sudden shocking event witnessed by the plaintiff. Justice Egan determined that the plaintiff did not satisfy the second and third criteria of the Kelly v Hennessy test.
Duty of Care
The Court identified that the duty of care that the plaintiff alleged she was owed by the defendant hospital was in effect “to shield her from the psychological impact of witnessing her husband’s deterioration in an unprepared manner.” The Court found that this was not a duty it would be reasonable to impose.
Conclusion
This case shows the courts must strike a balance in acknowledging the suffering of relatives while maintaining limits on the scope of the duty of care of health care practitioners to prevent an “uncontrolled" expansion of liability. In reaffirming the existing legal principles established in Kelly v Hennessy, this case did not alter the precedent set.
Further Information
For more detailed analysis on this case, see our prior article High Court Decision Provides Clarity on Nervous Shock Claims
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O’Neill v Birthisle [2024] IECA 17
The Court of Appeal recently dismissed a medical negligence claim on the basis that the plaintiff had failed to obtain an expert report, a number of years after the claim had issued.
In O’Neill v Birthisle [2024] IECA 17, the claim for medical negligence was dismissed as the plaintiff had not obtained an expert report, eight years after the original claim had issued.
Inordinate and Inexcusable Delay
The High Court found that the failure to obtain an expert report after a period of eight years was unfair to the defendants. Heslin J was satisfied that the delay by the plaintiff was both inordinate and inexcusable. As such, he was of the view that a fair trial was no longer possible, and the case was struck out.
Following an appeal by the plaintiff, Mr. Justice Noonan in the Court of Appeal found that the delay was both inordinate and inexcusable and constituted ‘the clearest prejudice to the defendant’ as it had seriously hampered the defendant’s ability to investigate this claim. On the balance of justice, he concluded that the case should be dismissed.
Conclusion
This case demonstrates that the courts do not approve of delays in progressing cases, either by the plaintiff or defendant. In cases of significant delay, the court will often consider striking out the action due to the potential to prejudice either party.
Further Information
For more detailed analysis on this case, see our prior article Medical Negligence Claim Dismissed Due to Failure to Obtain an Expert Report
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Collins v Parm & Ors. [2024] IECA 150
In the case of Collins v Parm & Ors. [2024] the defendant was driving a car when it lost control and hit a tree. The plaintiff was a passenger and was travelling without a seatbelt. In the immediate aftermath of the crash the plaintiff feared that she suffered a spinal injury and claimed that she suffered psychiatric injuries, as well as her physical injuries, as a result.
High Court
The High Court awarded the plaintiff €95,000 in general damages, with contributory negligence measured at 15% due to the failure to wear a seatbelt. Arguing that this amount was excessive and disproportionate, the defendant appealed this award to the Court of Appeal.
Court of Appeal
The Court of Appeal noted that neither party made reference to the Personal Injury Guidelines in their submissions to the trial judge and held that the High Court award was disproportionate as it amounted to an error of law. In cases where there are multiple injuries, the “most significant” injury should be identified and then an uplift made in terms of compensation for other injuries. The Court of Appeal considered proportionality in these cases and the risk of overcompensation in valuing each injury separately.
Where there is no dominant injury identifiable, a discount for overlap should be applied in respect of the range of injuries. A step-back approach was considered whereby the court looks at the proportionality of the award as a whole.
Award
The plaintiff’s psychiatric injuries were valued at €35,000, as the Court found that this fell within the moderate category of the Guidelines. The plaintiff’s non-dominant injuries were valued at €30,000, with the court reducing this by one third to reflect the overlap.
With the contributory negligence finding for not wearing a seatbelt, the plaintiff’s overall award was reduced by 15%, leading to a gross award of €55,000 for general damages.
Conclusion
The decision in Collins v Parm & Ors. [2024] provides clarification as to how the court should approach quantum in cases where there are multiple injuries. The case demonstrates the importance of the Personal Injuries Guidelines and the necessity for the courts to consider the proportionality of awards.
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James v Halliday [2024] IEHC 281
In James v Halliday [2024] a fatal collision occurred between the plaintiff’s car and a tractor, resulting in the tractor driver’s death and serious injuries to the plaintiff. The court was satisfied that the tractor driver was 75% responsible for the accident and the plaintiff guilty of 25% contributory negligence.
The accident occurred on a national road in a rural area at 6:50am. Road conditions were good despite being poorly lit and there being no hard shoulder. Both vehicles were on a straight portion of the road coming to a sweeping left hand bend at a slight gradient at the point of impact. They were on the same side of the road, travelling in the same direction.
Conclusions on Liability
The speed of the plaintiff’s car was one of the central factors of the case. While the court found he was travelling very close to the speed limited, it was not found that he was travelling over it. However, in this instance, the stretch of road did have dangerous bends, it was dark and the surface of the road wet. The court was satisfied that the plaintiff was travelling too fast in the conditions. While the speed limit was 100 km/h, the court noted that this is “merely an indication of the maximum permissible speed, at which a driver can drive his vehicle in ideal driving conditions”. In also considering the ample warning signs, the plaintiff was found to be negligent in driving too fast on the morning of the accident.
The second central issue was whether the plaintiff ought to have seen the defendant’s tractor and have taken the necessary steps to break. The tractor was travelling at an extremely slow speed and the court held the driver was ‘highly negligent’ in failing to illuminate the yellow beacon which is mandatory under The Road Traffic (Lighting of Vehicles) (Amendment) Regulations 2014 (SI 249/2014). This was exacerbated by the fact the tractor was a 1965 model with weak taillights.
High Court Findings
The court found that the tractor driver was 75% responsible for the accident with the plaintiff guilty of 25% contributory negligence.
The plaintiff spent four days in hospital and suffered spinal fractures and a fracture to his hand. He also suffered significant psychological sequelae as a result of the accident. The vocational assessors were of the opinion that without further physical improvement, he was unlikely to be able to manage work which involved heavy lifting or heavy manual work.
Taking all the medical evidence into account, coupled with the plaintiff's evidence, the court assessed the level of general damages for pain and suffering to be €90,000. The court further held that the appropriate level of general damages into the future is €40,000, with €30,000 for loss of opportunity. The court held over its final assessment of loss of earnings to date pending further submissions.
Conclusion
This case demonstrates that the High Court will examine the prevailing circumstances of an accident in its entirety when considering the apportionment of liability. An important take away from this case is that adherence to speed limits will not necessarily protect against contributory negligence when speed is deemed to be a factor.
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Conclusion - Healthcare Law: 2024 Year in Review
In conclusion, 2024 welcomed the Department of Health’s Interdepartmental Working Group on the Rising Cost of Health-Related Claims Report which has created a roadmap for long-awaited reform in the area of healthcare litigation. Looking into the year ahead of us, we are hopeful that the recommendations in the report will began to create a roadmap to positive change within the area.
In terms of the Court’s approach, it is clear from the above case law that the court are continuing to take a practical approach, emphasising the importance of reliable and up-to-date expert evidence while maintaining limits on the scope of the duty of the care of healthcare practitioners. The Court’s attitude towards delay remains unchanged with consideration given to striking out an action due to the potential to prejudice either party.
Further clarification as to how the Court’s should approach quantum in cases where there are multiple injuries was welcomed in Collins v Parm & Ors. [2024, which emphasises the importance of the proportionality of awards.
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Further Information
For further details or expert legal advice on any Healthcare or Medical Negligence matter, please contact Avril Scally, Partner and Head of our award-winning Medical Negligence & Personal Injury Team.
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