Latest National Maternity Hospital News
Nov 7, 2021
People often ask me if I would like my children to join the legal profession and deal on a daily basis with the harrowing stories of trauma, anguish and grief which, as medical negligence practitioners, we have to do. My first thought is often no, I wouldn’t. However, my daily work reminds me that people who are suffering very serious, lifelong injuries or the loss of loved ones need strong and capable people to help them defend the extremely traumatic and difficult process involved in taking a case against the State. It is a fundamental legal principle that people who are injured through negligence are entitled to fair compensation for their injuries. In our experience, a large number of injured parties will require expensive, lifelong care. Many are children who will never be able to enjoy a normal life. In many cases, grieving relatives will simply want an acknowledgement from the State that a wrong has taken place, so that they can process the shock of what has happened, their sadness and often their profound grief. In my experience, their distress is almost invariably compounded by the way in which these cases are currently defended. The State Claims Agency, the body responsible for managing legal claims against the State, has a responsibility to contain the liability of the State at the lowest possible level. Essentially, this means keeping compensation to a minimum. However, it is also its stated objective to do so “while acting fairly and ethically in dealing with people who have suffered injuries”. I would argue that pursuing the first objective actually makes it very difficult for the State Claims Agency to deal “fairly and ethically” with injured parties. Business Newsletter Both of these objectives have been seriously called into question in recent months. This year’s case of Rebecca Price and Pat Kiely, who settled a legal action against the National Maternity Hospital and a private clinic over the termination of a pregnancy based on incorrect medical advice, is a clear example of why the system of managing claims needs urgent reform. The position taken by the State in defending this case is typical, and very familiar to those of us in the legal profession representing clients who take medical negligence claims. The State contested every part of the claim, and nothing was conceded. A trial date was repeatedly pushed back, but the State didn’t present a defence. The progress of the case was repeatedly delayed, with the State requesting numerous reports and information from laboratories, experts and psychiatrists. It maintained that it would mount a full defence until shortly before the final trial date, when it began to seek a settlement. Unfortunately, this is a process which is all too familiar to plaintiffs, their legal advisers and at this stage, probably the general public too. It is only fair to point out that the State is perfectly within its rights to mount a defence of this nature, where its own experts are of the view that the claim can be defended. There are complex liability issues in some cases, and the State is entitled to highlight this and to seek to pay a compromised damages figure. However, I could provide any number of examples of cases of catastrophically injured plaintiffs, which were fully defended up to the trial date or a week or two before, only for liability to be fully admitted at that very late stage. At that point, there are very significant legal costs incurred and in my view, the current process prolongs the anguish of both the injured party, and indeed, the medical professionals involved in the case. Our system here is not as efficient as in the UK, where it is rare for such matters to go all the way to a trial due to a number of wide-ranging reforms of the civil litigation process, primarily the reforms introduced by Lord Woolf in 1999 and the further reforms introduced by Lord Jackson in 2013. The UK system has been dramatically reformed to include, amongst many other things, pre-action protocols which help to streamline how such cases are run. Legislation introduced here in 2015, the Legal Services Regulation Act, provides for the introduction of similar protocols, but the relevant provisions have still not been activated. The legal system should be fair and equitable to all, and urgent reform is needed to ensure that justice is carried out in a timely and efficient manner, Not only will this benefit the State, but more importantly it will take a huge burden from the shoulders of injured parties and the medical profession. So, despite the many harrowing and traumatic cases we deal with, I believe I would encourage my children to enter the legal profession, as we can be proud of the work we do in helping injured parties to navigate a difficult legal system and in standing up for their right to access justice. Joice Carthy is managing partner of Augustus Cullen LLP, Ireland’s leading legal practice in medical negligence.