Clinical Indemnity Scheme
Obstetric Forum – Farmleigh
11
thFebruary 2014
“
Obstetric Litigation – The Role of the
Clinical Indemnity Scheme”
Ita Guilfoyle
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
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
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)
1. Origins & Objectives
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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
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
%
2. Types of Claim
Settled Claims by Speciality
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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
%
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
%
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
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
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
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
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
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
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(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
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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
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
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).
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6. Old & New Methods of
Resolving Cases
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
(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)
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6. Old & New Methods of
Resolving Cases
(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
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6. Old & New Methods of
Resolving Cases
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
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
7. MIAB
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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
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%
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
8. The Way Forward
Legal
New Focus on Alternative Methods of Resolution
Mediation
PPOs
Contact Details
Clinical Indemnity Scheme
Emergency Medico-Legal Helpline
Website:
29
(01) 2384100
(01) 2384109
Clinical Indemnity Scheme