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Clinical Indemnity Scheme

Obstetric Forum – Farmleigh

11

th

February 2014

Obstetric Litigation – The Role of the

Clinical Indemnity Scheme”

Ita Guilfoyle

(2)

1. CIS - Origins & Objectives 2. Types of Claim

3. Obstetrics – Recurring Areas of Concern 4. Duty of Care/Standard of Care

5. The Journey to the Courts

6. Old & New Methods of Resolving Cases 7. “MIAB” ??

8. The Way Forward

(3)

1. Origins & Objectives

 Established 2002 – to rationalise pre-existing

medical indemnity arrangements

 Consultant cover March 2004

 Aims

- Support patient safety

- Minimise occurrence of clinical claims

- Allied with mandate to ensure State liabilities contained at lowest level

- Implement risk programmes to reduce future litigation costs

(4)

1. Origins & Objectives

 Cover

- Public Hospitals/Clinics/Healthcare Facilities

- 68,000 clinical or ancillary staff

 Current Claims Portfolio

- 3,020 clinical claims (including 212 inquests)

- Outstanding liabilities of €1bn

- €87.7m paid in total in 2012 (including costs) - €121.2m paid in total in 2013 (including costs)

(5)

1. Origins & Objectives

5

Transactions Per Year

Transaction Date 2010 (€m) 2011 (€m) 2012 (€m) 2013 (€m)

ELPLPD 12.3 13.4 13.0 18.0

Clinical 81.0 97.8 87.7 121.2

Total transactions 93.3 111.2 100.7 139.2

*Third party contributions and recoveries of €1.7m have been received by the SCA making the actual outturn for 2013 €137.5m

Key figures for transactions and resolved claims:

Clinical Resolved Claims

Resolved Year 2010 2011 2012 2013 < €25,000 289 252 202 193 €25,000 - €100,000 82 81 101 89 €100,000 - €200,000 40 48 54 65 €200,000 - €1,000,000 30 40 49 62 >€1,000,000 8 10 11 10 Total resolved 449 431 417 419 Total Paid €m 50.0 60.8 59.7 63.0 Resolved Inquests 142 163 103 35

(6)

2. Types of Claim

Settled Claims by Incident Type

0 5 10 15 20 25 Absconsion Equipment/Device Incident Inappropriate Behaviour Violence/Harrassment/Aggression/Abuse Discharge incident Identification/Records/Documentation Incident Unexplained Injury/Unknown Cause Blood transfusion incident Medication incident Unplanned events Infection control incident Self-Harm Slips/Trips/Falls Other Peri-natal Treatment incident Peri-operative / peri-procedure incident Diagnosis incident 0.4 0.4 0.4 0.4 0.8 0.8 0.8 1.2 2.5 2.5 3.3 3.7 4.6 5.8 13.3 15.4 19.9 23.7

%

(7)

2. Types of Claim

Settled Claims by Speciality

7

0 5 10 15 20 25 30

Anaesthesia Community Health Services Haematology Other Allied Professional Services Paediatrics Gynaecology Radiology Mental Health Medicine Obstetrics Emergency Medicine Surgery 0.4 0.4 1.2 1.2 2.1 2.5 2.9 3.7 5.8 14.9 17 21.2 26.6

%

(8)

2. Types of Claim

Contributory Factors & Root Causes

0 2 4 6 8 10 12 14 16 18 20

Failure/Delay to perform tests Misdiagnosis Failure to provide adequate information Failure to seek consent Competence/Skills/Knowledge Delay/Failure acting on formal result Delay /Failure to treat Delay/failure in recognising complication Failure to Monitor Practitioner Error 3.1 3.1 4.1 5.1 5.1 6.1 7.1 9.2 10.2 19.4

%

(9)

3. Obstetrics – Recurring Areas

of Concern

Injuries to Mother:

1. Caesarean Section

2. Episiotomy & 2nd/3rd Degree Tears

3. Pre-eclampsia 4. Fissures

5. Perineal Tears

6. Uterine Rupture & Placental Abruption 7. Symphysiotomy

8. Wrongful Death

(10)

Injuries to Baby:

1. Cerebral Palsy & Brain Injuries 2. Erbs Palsy & Shoulder Dystocia

3. Injury to baby caused by forceps delivery 4. Wrongful Death

3. Obstetrics – Recurring Areas

of Concern

(11)

4. Duty of Care/Standard of Care

 The right of the State to defend cases

(a) Liability – care fell below medically acceptable standards

(b) Causation – The breach of duty/negligence directly results in the injury

 The perfect doctor/nurse –v- The reasonable

doctor/nurse – strict liability

 Dunne –v- National Maternity Hospital (1989)

IRP90

(12)
(13)

4. Duty of Care/Standard of Care

Typical Issues

 Provision of improper or inadequate care

 Failure to protect mother or baby against risk

of foreseeable harm

 Failure to consult with more experienced

medical professionals when practice situation is outside level of own knowledge and skills

 Failure to refer to other medical professionals

when complications or deviations arise

(14)

 Medication errors

 Keeping inadequate records of observations,

care given and medication administered

 Difficulties arising during instrumental

deliveries

 Failure to adequately monitor

 Consent - failure to warn of risks

(15)

 Report of Incident

 Freedom of Information Request

 Pre-Trial Letter of Claim

 Proceedings Setting out Allegations of

Negligence

 Investigation of Claim

a) Treating Clinicians/Staff

b) Independent Experts

 Concession of Liability –v- Defence

 Settlement –v- Trial

15

(16)

(A) Old fashioned settlement negotiations full and final lump sum payments

(B) Periodic Payment Orders

Certain payments made on a periodic basis throughout the lifetime of the injured party as

their needs arise

6. Old & New Methods of

Resolving Cases

(17)

17

Criticism of the Lump Sum Award Approach

“The system encourages a conflict of evidence with both parties seeking the best possible outcome. The court is required to determine the level of future damages by seeking to resolve conflicting expert medical and other evidence. This presents the court with the almost impossible task of providing “fair and just compensation” where life expectancy is uncertain or disputed”.

Arguments in Favour of the Lump Sum Award

 Conclusiveness and certainty in the resolution of a claim.

 Insurer (defendant) can “close the book”.

 Plaintiff has greater financial autonomy

(Report of Working Group on Medical Negligence and Periodic Payments, P. 12.)

6. Old & New Methods of

Resolving Cases

(18)

Arguments in Favour of PPOs

 Lump sum inadequate and inappropriate for

long-term/permanent injuries.

 Pay for future care, treatment and medical

equipment when the need actually arises.

 Capacitated adults, entitled to settle claims for

damages as they deem appropriate.

6. Old & New Methods of

Resolving Cases

(19)

Twenty-four cases have settled on the following basis:

 Payment of a contingency lump sum.

 Two years future care costs:

- Case adjourned for two/three years with the aim of agreeing a PPO arrangement with effect from return date (assumes introduction of legislation).

19

6. Old & New Methods of

Resolving Cases

(20)

Interim Settlement with Potential PPO in 2 Years

Item Damages in €

General damages 450,000

Retrospective care costs 130,000 Future care costs – 2 years only 100,000

Aids and appliances 100,000

Assistive technology 50,000

Future accommodation costs – house 350,000 Accommodation costs to date i.e. alterations 100,000 Miscellaneous special damages – travel and car 20,000

Future loss of earnings 350,000

Total 1,650,000

6. Old & New Methods of

Resolving Cases

(21)

(C) Alternative Dispute Resolution

ADR Mediation

 L.R.C. recommends ADR processes, including mediation and conciliation, in clinical negligence cases. Early neutral evaluation was envisaged as:

- “A process that occurs at an early stage of civil proceedings in

which the parties state the factual and legal circumstances to an independent third party with suitable knowledge of the subject matter of the dispute, and in which the entirely neutral evaluator provides an evaluation to the parties as to what the likely outcome of the proceedings would be if the claim proceeded to a hearing in court”.

(Para 7.24)

21

6. Old & New Methods of

Resolving Cases

(22)

(C) Alternative Dispute Resolution cont/d….

Mediation

 Rarely used in Medical Negligence Cases. Why?

- Fear of having revealed one’s hand should mediation not be successful.

- Costs. Who pays them?

- Bias in favour of formal trial of liability and causation issues.

- Quality of the mediation chairperson

Improvements to Current Regime

 Introduction of Pre-Action Protocols

 New Rules of Court

 Case Management

22

6. Old & New Methods of

Resolving Cases

(23)

7. MIAB

The Current Injuries Board and its Role

 Admission of liability and assessment of damage

Cases Outside its Remit

 Liability Disputed

 Ongoing injury

 Previous injuries causation

 Psychological injury

(24)

7. MIAB

Medical Negligence

 Numerous facets to the injury/multiple

injuries

 Many treating clinicians and other hospital

staff involved

 Causation - often a major issue

 Many independent experts

 Ongoing injury/symptoms

(25)

7. MIAB

25

Awards by Claim category

The graph below shows that in 2012, 75% of all awards were in respect of Motor cases, while 8% related to Employer’s Liability and 17% related to Public Liability.

Breakdown of total no. of Awards in 2012 by value and Claim Category

64% of InjuriesBoard.ie Awards are under €20,000 and 91% are under €38,000 as per the table below. The profile of personal injury claims has remained relatively consistent since the Board became operational. Injuries sustained were and continue to be predominantly soft tissue or fractures, or a combination of both with associated compensation award levels of approximately 90% of such cases below €38,000 and two thirds below €20,000.

Breakdown of Total No. of Awards in 2012 (by Value and Claim Category)

Average Value Category (€'s) Motor Liability Employer's Liability Public Liability Total <20k 5,215 387 924 6,526 20-38k 1,878 279 549 2,706 38-100k 475 129 228 832 >100k 54 12 6 72 All 7,622 807 1,707 10,136

(26)

7. MIAB

Injuries Board – 2012 Statistics

 Average Award - €21,502

 Highest Award - €697,495

 Lowest Award - €66

Awards Accepted/Sent to the Courts

2012 – Total No. of Awards 10,133

Total Awards Accepted 6,124 = 60% 2011 – Total No. of Awards 9,833

Total Awards Accepted 5,075 = 51%

(27)

8. The Way Forward

Medical – Identify & Rectify

 Effective risk assessment

 Implementation of recommendations

 Training

 Fair and just approach

CIS

 Reciprocal co-operation with Enterprises

 Efficient and thorough investigations

 Early assessment – (if possible)

 Identify means of resolution to suit specific case

(28)

8. The Way Forward

Legal

New Focus on Alternative Methods of Resolution

 Mediation

 PPOs

(29)

Contact Details

Clinical Indemnity Scheme

Emergency Medico-Legal Helpline

Website:

29

(01) 2384100

(01) 2384109

(30)

Clinical Indemnity Scheme

References

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