Healthcare Law & Litigation in 2023

There were several interesting developments in the healthcare sphere during 2022, including the publication of:

• Legislation relating to surrogacy, organ donation and organ retention at post-mortem
• Dr. Gabriel Scally’s final report into the CervicalCheck Screening Programme, and
• The Implementation Plan for civil justice reform

Clinical Negligence Claims – trends for 2023

2022 proved to be the year that healthcare litigation moved into the “living with COVID-19” phase with a return to in-person hearings for medical negligence claims. The legacy of hybrid hearings remains as an efficient means to hear the evidence of foreign-based expert witnesses remotely.

Notable messaging from the courts in 2022 included:

• Legal practitioners should retain impartial experts with relevant expertise to support the claim[1]
• Excessive delays in progressing medical negligence claims, especially where a claim is not supported by appropriate expert opinion, can result in claims being dismissed[2]. See discussion of the Rooney case here
• Where a claimant delays in serving the summons to the point that it has to be renewed but the defendant delays in seeking to set aside the summons, the balance of justice may not favour the summons being set aside[3]. See discussion of the McGuinness case here
• The nature of the claim and the basis for the defence to the claim must be pleaded with specific detail and not be generic or vague[4] so as not to risk dismissal[5]

The Implementation Plan for civil justice reform[6] published in May 2022 targets a number of reforms specific to clinical negligence litigation. These include reform of pleadings, introducing pre-action protocols and establishing a separate court list for clinical claims subject to judicial resources. There is also an ongoing process to determine a replacement price index to address healthcare sector inflation relevant to Periodic Payment Orders (PPOs) in catastrophic injury claims. It will be interesting to see what progress 2023 will bring in this regard.

Mandatory open disclosure on the horizon?

Dr. Scally’s final report into the CervicalCheck Screening Programme acknowledged that significant progress had been made. That said, Dr. Scally’s view is that the Patient Safety Bill[7] in its current guise does not provide an adequate framework for open disclosure of patient safety incidents. The Bill is set for further legislative debate before the Dáil in early 2023 in the context of the Scally report.

The Human Tissue Bill 2022

For the first time, this Bill[8] provides a national legislative framework for organ and human tissue donation and transplantation in Ireland. The aim is that people will be regarded as organ donors unless they register to opt out of this system during their lifetime. This Bill will also include pathways for living organ donation and altruistic donation which will help increase the donor pool in Ireland.

The Bill also amends the Coroner’s Acts 1962-2020 with its introduction of additional provisions for communicating with families in cases where a coroner’s post-mortem is required and organs or tissue are being retained. The Bill further provides for the regulation of the retention, storage, use, disposal and return of organs from deceased’s persons following all post-mortems in hospital settings.

Health (Assisted Human Reproduction) Bill 2022

This Bill provides for the regulation of a wide range of assisted human reproduction practices including domestic altruistic surrogacy. Currently, this Bill does not deal with surrogacy arrangements undertaken in other jurisdictions. Recent government approval is welcomed for policy and legislative proposals on international surrogacy and the recognition of certain past surrogacy arrangements. The intention is that these new proposals will be inserted into the Bill at Committee Stage. The key principles underpinning these proposals on international surrogacy are the protection of the rights and welfare of the children, surrogate mothers and intending parents.

Conclusion

We await with interest as to how the legislative provisions regarding open disclosure, human tissue and international surrogacy will play out during 2023. It is to be expected that the ongoing focus on specificity in pleadings will continue especially for clinical negligence claims. It remains to be seen what further reforms 2023 will bring in the field of healthcare law and litigation.

For more information, please contact a member of our Medical Law team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Duffy v McGee 2022 IECA 254

[2] Rooney v HSE 2022 IEHC 132

[3] McGuinness v Sharif & Hermitage Medical Clinic 2022 IEHC 438

[4] Sections 10(2) and 13 of the Civil Liability and Courts Act 2004 and the Civil Justice Efficiencies and Reform Measures, A Civil Justice System for the 21^st Century, May 2022

[5] Ahmed v Castlegrange Management CLG 2022 IECA 269

[6] Civil Justice Efficiencies and Reform Measures, A Civil Justice System for the 21^st Century, May 2022

[7] Patient Safety (Notifiable Patient Safety Incidents) Bill 2019

[8] Human Tissue (Transplantation, Post-Mortem, Anatomical Examination and Public Display) Bill 2022