Pre-Action Protocol Aims to Reduce Cost of Making Clinical Negligence Claims

The Medical Protection Society has released “pre-action protocol” proposals, which it hopes can be run on a trial basis to reduce the cost of making clinical negligence claims in Ireland.

The “pre-action protocol” proposals released by the Medical Protection Society (MPS) aim to promote openness and transparency between solicitors acting on behalf of plaintiffs and defendants, reduce the length of time it takes for legal action against medical professionals to be resolved and reduce the cost of making clinical negligence claims in Ireland.

Due to the costs involved in litigating legal action, the cost of making clinical negligence claims in Ireland can prevent some plaintiffs from recovering compensation for their injuries. The MPS hopes that, with the opportunity for clinical negligence claims to be investigated and resolved before court action is necessary, the protocols should cut the costs of clinical negligence claims by using mediation to settle claims quicker in a less adversarial environment.

Emma Hallinan – Director of Claims at MPS – is proposing that the protocol be trialled voluntarily before legislation is introduced to enforce mediation between parties. She said “We recognise the important role that the MPS must play, and have committed to trialling procedural reform before it is introduced in statute. We are in the process of writing to plaintiff lawyers with large medical negligence practices to request that they work with us to pilot this.”

During the MPS´s proposed trial, a tariff of general damages would be used – similar to the UK´s Judicial College “Guidelines for the Assessment of General Damages in Personal Injury Cases” – which would provide a scale of compensation values for specific physical injuries caused by clinical negligence ranging from dental damage to life-changing brain injuries.

General damages for psychological injuries and loss of amenity – as well as special damages for the financial costs of hospital negligence – would still have to be resolved by negotiation, but many observers looking at the MPS´s “pre-action protocol” proposals acknowledge that it is a step in the right direction for reducing the costs of hospital negligence claims in Ireland.

Note: In England and Wales a similar scheme currently exists which penalises solicitors who go for litigation without first attempting a resolution by mediation.