Every time a maternal medical negligence case is taken, a midwife leaves the profession, according to a union representing senior doctors.
The Irish Hospital Consultants Association (IHCA) annual meeting in Killarney on Saturday focused on medical negligence, risk and reform.
President of the High Court, Judge David Barniville, said the healthcare and justice systems “intersect in a whole host of ways”.
He said the courts have made changes in recent years to improve the way in which these cases are handled, “but ultimately they need to be underpinned by legislation”.
“There are all these recommendations going back, in some cases, 20 years. Pre-action protocol is in legislation but requires ministerial regulation,” he said, adding that an implementation group designed to introduce reforms hasn’t met in several months.
Pre-action protocols refer to a set of rules requiring early engagement between claimants and doctors. It is envisaged that this will cut the number of cases reaching the High Court or only being settled after the protracted involvement of lawyers.
In addition to benefiting all parties, such a move could help curb the growth in the State’s liability for medical negligence claims.
“Courts aren’t experts; legislators are supposed to be the experts. We are at the limit in terms of what we can do,” he added.
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Prof Gabrielle Colleran, president of the IHCA, said these cases, and their adversarial nature, have a huge impact on staff.
“Every time we have a medical negligence case in maternity services, you lose a midwife who was involved in it, who then leaves practice,” she said.
“If you think about all that goes into training … we need to change that.
Eavanna Fitzgerald, a barrister who practised for 20 years, said nobody wants patients or doctors having legal cases “looming over them for five years”.
“They’re losing sleep for five years. Patients who have already had [an] adverse event are having repeated trauma,” she said.
Fitzgerald said, in her experience, between 95 per cent and 97 per cent of cases are settled before the trial; however, she said sometimes this can be on the steps of the court, which is still traumatising.
Prof Rhona Mahony, former master of the National Maternity Hospital, and former chair of the interdepartmental working group on the rising cost of health-related claims, said it is important to remember that patients are at the heart of these claims.
“The big cost of claims is the cost of damages in cases of brain injury, largely cases of cerebral palsy and cases arising from birth,” she said.
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“There’s a huge gap between what the courts award and what is available to the patients who cannot take the case and cannot make a claim. There’s huge inequality.”
Mahony called for “early care pathways” for all individuals with brain injury, regardless of whether there was negligence.
Barniville added that the high damages awarded in such cases, which have been as high as €35 million, are largely comprised of the cost of care, with only €500,000 being for compensation.