HSE Makes Huge Payouts On Negligence Claims by Annette J Dunlea
The Health Service Executive (HSE) paid out more than €81 million on negligence claims last year, while the figure was €47 million in 2009.The chairman of the Oireachtas health committee Jerry Buttimer asked Minister for Health James Reilly and the HSE to reveal the total amount paid out on foot of negligence claims in each of the last three years, and the associated legal fees incurred. Mr Buttimer was provided with a figure of €47,562,429 for 2009, rising to €79,283,418 the following year and to €81,203,568 in 2011.The associated legal fees which were incurred by the State Claims Agency were included in the total figures, but when separated out amount to €17.2 million in 2009, €23.9 million in 2010 and €32.1 million in 2011.The HSE has been substantially self-insured since 2009. Thirty two million euro, or around 40% of this figure, was spent on the HSE’s legal defence fees. The figures were provided to the Oireachtas Health Committee by Minister for Health, James Reilly TD. More than €81 million was paid on negligence claims by the HSE in 2011, an increase of 2.4% on the amount paid in 2010. This is a worryingly large amount of money which could be put to better use elsewhere in the health service. Thirty two million euro of the overall amount went to HSE legal defence teams, that’s around 40%. This is despite a cap being introduced on the legal teams’ fees which has reduced them by more than 20%. Clearly more needs to be done to ensure that more taxpayers money can be directed where it’s really needed.“People who have been injured because of negligence deserve to be compensated fairly.
Other claims are still covered by insurance policies.“In 2009, an 8% reduction in the cost of legal services for HSE negligence claims was implemented. In the recent round of tenders for legal services the State Claims Agency further reduced the level of fees. Legal teams acting for the State had their fees capped at 40% of what is being paid to solicitors representing plaintiffs. These measures have resulted in a reduction of legal fees by as much as 20% yet despite this we are still left with massive legal bills. At a time when resources are scarce we need to be concentrating taxpayers’ money on delivering services to patients, not paying hefty legal fees. We must take a serious look at how we can make savings in this area. The Health Service Executive is facing a potential financial deficit of €500 million this year if corrective action is not taken, its chief executive has confirmed. The Taoiseach said the HSE has already outlined approaches to deal with the €0.5 billion shortfall, including potential plans to reduce the amount of agency staff it employs and making reforms to the Croke Park Agreement, which would include more effective use of human resources. Mr Martin said the latest reports suggested that the deficit overrun was close to €280 million by the end of May and the figure had risen by €80 million in one month. It was projected to go to €500 million,so we must be selective with our health spending.
Figures revealed by the Medical Independent show that of the 1,217 incidents at Cork University Hospital last year, 656 involved slips, trips and falls. A further 225 were medication incidents, 11 were blood transfusions, 30 were radiation incidents, 71 equipment and device incidents, and 29 involved infection control problems. The average award being €63,000.What is Hospital Negligence?A hospital in Ireland can be held liable for the negligence of its employees, including their doctors, nurses and technicians. Hospital malpractice occurs not only in hospital wards but in day surgery and outpatient clinics. Hospital negligence happens for many reasons, which can include inadequate training, poor documentation, failure to keep up with modern techniques, misreading of medical charts or drug information sheets. Surprisingly, over 40% of hospital negligence incidents in Ireland arise from slips and falls. Treatment incidents are perhaps the most disturbing.
In order to establish if there is a case in medical or dental negligence, it will be necessary to obtain all of your relevant medical or dental records depending whether the claim is against a doctor or dentist. These will need to be examined in consultation with you for the purposes of ascertaining what exactly went wrong and whether or not such actions or events constitute Medical or Dental Negligence, within the existing legal framework. In order to prove that a doctor or dentist is negligent, it is necessary to establish that no reasonably competent practitioner in the relevant field, at the relevant time, with the same qualifications and expertise, faced with the same circumstances, would have acted in the same way. If it is possible to show that a reasonable and competent body of medical or dental opinion would have acted in the same way, then the care is not considered negligent. The second stage is “causation”.This links the medical/dental negligence (if established) with the ultimate unfortunate outcome. It needs to be established that but for the error on the part of the doctor or hospital or dentist the injury would not have occurred. If this cannot be proven, there is no case in Medical or Dental Negligence. It is important to note the law in relation to the Statute of Limitations within which a case can be taken is two years from the date of the accident or injury. In the case of persons with intellectual impairment or in the case of Minors the time limits are extended by the legislation. There is also an allowance made by the law for those who did not have knowledge of the wrongdoing and in these circumstances, the time may be extended. Proving medical negligence claims is a complex task and the injuries must result from the negligence of somebody who had a duty of care towards you. Liability for medical negligence claims may not be immediately apparent, as many people can be involved in patient care.
The HSE is launching a new complaints procedure called “Your Service, Your Say” that is aimed at obtaining both positive and negative feedback. The HSE is presumably looking for opportunities to improve the health service. The HSE is aiming to provide a 30-day turnaround on complaints. There was a 63 percent increase in complaints in 2009, with the total reaching 8,000. Despite the surge in complaints, the director of advocacy in the HSE some still believes there is under reporting of complaints due to patient’s reluctance to question medical decisions. While the general principle of collecting feedback with the objective of improving services is an extremely positive development for the HSE, patients should be cautious regarding medical negligence and other types of hospital negligence. The prudent approach is to speak to a solicitor before making any accusations regarding medical malpractice. It’s not just a question of defamation, but also because the victim may wish to make a compensation claim at a later date.
In New Zealand , timely and appropriate compensation and support for injury as a result of medical negligence is the norm and we should follow suit to save valuable money to our limited health budget. In New Zealand, a Government-funded body, the Accident Compensation Corporation, is the means by which injured patients receive compensation instead of suing for damages. While a causal link between treatment and injury is required, the “no fault” nature of the system means you can apply for assistance no matter how the injury occurred or who was at fault. Most claims can be processed within weeks and decisions must be made within nine months. Claimants may request a review of a decision they are unhappy with and are entitled to a court appeal if they are still dissatisfied. The New Zealand system puts the patient first by providing a straightforward claims process where people who have been injured though medical negligence or treatment can receive fair compensation within an acceptable time period. Thee supports can include a wide range of services: from payment towards treatment, to help around the home, assistance with loss of income and rehabilitative programmes to help the injured party get back to work, or to live independently. Central to the New Zealand model is breaking the link between proving liability and providing the injured patient with the support and resources they need. The New Zealand-type model will take time to deliver and cannot happen overnight. In the meantime, there are some short-term steps that could be taken to cut legal costs. For a start, some reforms recommended in the McCarthy Report could save €20 million for the State Claims Agency by better management of claims and using periodic payments instead of lump sums. Second, the Government should take up the suggestion of Deputy Leo Varadkar, and use one of its successful agencies: the Personal Injuries Assessment Board :which handles motor and workplace accident claims. This is based on a non-adversarial model. If that model works for car accidents, surely it could work for hospital accidents.
Causes Annette Dunlea Supports
The National Council of The Blind, Ireland