Healthcare Litigation Review of 2023 and Prognosis For 2024

During 2023 there was a significant number of applications before the court seeking to dismiss medical negligence claims on grounds of delay. We review the mixed outcomes and the trends emerging from the court.

This year also saw the court having continued focus on the need for precision in pleaded allegations. The importance of having independent expert medical opinion supporting those allegations was also highlighted.

The evolving story from 2023 is open disclosure with the enactment of the Patient Safety Act. As this Act has yet to be commenced we look forward to 2024 to see how this story further unfolds.

Delay - two aspects

1. Delay in serving medical negligence proceedings

In general, a patient has a period of two years to issue proceedings. This two-year period starts when a patient becomes aware that he/she has been significantly injured as a result of possible negligent medical treatment. Once proceedings have been issued, they must be served on the hospital within a further period of one year. If not, the patient must apply to the court to renew the proceedings showing special circumstances as to why the proceedings were not served within the one-year period. Where there is a delay in renewing the proceedings, it is open to the hospital to seek to set aside the renewal.

The court has looked at the “special circumstances” test in several cases including a recent case of Byrne[1] where there was a delay of more than five years in the patient applying for the renewal. The court allowed this claim to proceed despite this delay. While mere inadvertence, staff shortages or Covid-related delays will not constitute special circumstances, they were found to exist where:

• The patient had been proactive throughout in seeking his medical records and radiology imaging from his treating hospital
• The delay was compounded by the hospital not providing the imaging in an accessible format
• The patient had been proactive in engaging with a medical expert who could not conclude the expert report without accessing the awaited imaging
• The hospital could not show any specific prejudice arising from the delay
• Despite the lengthy delay the balance of justice favoured allowing the claim to proceed

2. Delay in progressing medical negligence claims

Where proceedings are properly served the patient must then progress the claim pro-actively. If the patient delays, it is open to the hospital to apply to dismiss the claim on grounds of delay. The applicable test is the three-limb Primor test[2]:

1. Is the delay inordinate?
2. Is the delay inexcusable? If the answer is yes to 1 and 2, then
3. Does the balance of justice favour dismissal?

We considered the mixed outcomes where the court dismissed some cases and not others in previous updates.

The emerging messaging from the court is that a claim is more likely to be dismissed in the following circumstances:

• The delay by the patient is excessive from the start, ie nearly the full two years to issue proceedings and the one year to serve were used up
• The hospital was not put on notice of the claim before service of proceedings
• The allegations pleaded were general and not specific as to the date and nature of negligent treatment along with injuries suffered[3]
• No expert medical opinion obtained supporting the allegations
• No picture of active steps by the patient
• The hospital can show specific prejudice, ie where the specific memory of a treating doctor is necessary to defend the allegations meaning that the existence of the medical records is not sufficient
• The medical records no longer exist and/or treating doctors are no longer available
• The hospital argues reputational damage to the treating doctor(s), especially where a claim is maintained for years without supporting expert medical opinion
• The hospital itself did not contribute to any delay

Open disclosure

Following significant public and legislative debate the Patient Safety Act[4] was enacted in 2023. While this Act has yet to be commenced, it represents a shift from a voluntary to a mandatory regime of open disclosure. The Minister for Health has since launched a National Open Disclosure Framework to complement the Patient Safety Act. The Framework will apply to both public and private health and social care providers. It sets out a consistent system-wide approach for open honest communication following a patient safety incident. Overall, it aims to embed a practice of open disclosure within the health services and to foster a culture of patient safety that is focused on continuous learning and improvement.

The Court of Appeal decision of O’Keeffe[5] is an example of where there can be interplay between open disclosure and discoverability of confidential staff statements submitted to a hospital risk management enquiry. The O’Keeffe decision is discussed by our team in a previous update. While future cases will be decided on their facts, it would appear that a hospital will have to show very compelling reasons why confidentiality assured to staff in providing statements to an enquiry should outweigh the interests favouring disclosure.

What to expect as we move into 2024

Periodic Payments Orders

Justice Plan 2023 set out several proposals towards reforming medical negligence litigation which we discussed previously. Progress has been made during 2023 with the commencement of legislation[6] to allow the Minister for Justice to consider a broad range of factors when making regulations to set an indexation rate for Periodic Payment Orders (PPOs). PPOs are a means to compensate patients who have suffered catastrophic injuries. PPOs have not been used for several years as the indexation rate would likely result in under-compensation. Hopefully, the awaited ministerial regulations specifying a new indexation rate will lead to a revival of PPOs.

Reform of the Coroner’s Service

Steps towards reform of the Coroner’s Service are also underway with a public consultation service seeking input as to the future structure, resourcing and working of the Service. The Department of Justice has established an Advisory Committee to support this consultation process. The role of the Committee includes advising on draft reform proposals. The Committee has already made some recommendations including creating rules relating to verdicts to ensure consistency by coroners nationwide. It was also recommended that a central database be established to record recommendations made by all coroners.

Opt-out organ donation

The Human Tissue Bill[7] is progressing through the legislative process. The aim is that people will be deemed to have consented to be organ donors unless they register to opt out of this system during their lifetime. The Bill will also introduce additional provisions for communicating with families where a coroner’s post-mortem is required and organs or tissues are being retained.

Updated guidance for medical practitioners

The Medical Council recently launched a new edition of the Guide to Professional Conduct and Ethics for Registered Medical Practitioners. This new edition will take effect from January 2024. It contains welcome updated guidance for doctors on areas including telemedicine, open disclosure and when acting as an expert witness in legal proceedings.

Renewed focus on independence of expert witnesses

It is clear from the Duffy[8] case that the overriding duty of an expert is to provide truthful, independent and impartial expert evidence to the Court regardless of which party to the proceedings instructed the expert. This issue arose again in Crumlish[9], being a case relating to an alleged delay in diagnosing breast cancer, discussed in a previous update. It was re-emphasised in Crumlish that an expert’s role is to provide independent advice to the Court rather than tailoring their opinion to fit snugly around the arguments of the party who retained them. Should an expert align their opinion with the interests of the party who instructed them rather than remaining impartial, there can be serious implications. It is open to the court to exclude that expert’s evidence, as occurred in Duffy, or favour the other party’s expert evidence as occurred in Crumlish, influencing the outcome of the claim.

Conclusion

It seems likely that the Patient Safety Act will be commenced during 2024. While this may present challenges for those working within the health services, the Framework should assist in a consistent approach being adopted to embed a culture of open disclosure resulting in a better, safer care experience for all patients and their families.

We would caution all parties to medical negligence litigation to be proactive. Appropriate independent medical expert opinion should be obtained as the earliest stage. This expert opinion should support the allegations which should be pleaded in as much detail as possible. It is to be expected that the court will continue to keep an unforgiving eye on excessive or necessary delays which could result in claims being dismissed.

We will have to see if 2024 brings further progress in the revival of PPOs, reform of the Coroner’s Service or finally introduces opt-out organ donation.

For expert legal advice regarding the defence of medical negligence claims, contact a member of our Healthcare or Medical Law teams.

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

[1] Byrne v Adelaide and Meath Hospital Dublin, St. James’s Hospital, Ronan Ryan and the HSE, 2023 IEHC 609

[2] Primor plc v Stokes Kennedy Crowley [2019] IECA 156

[3] Civil Liability and Court Act 2004 as amended, section 10(2)

[4] Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023

[5] O'Keeffe & Anor v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin, Court of Appeal, 30 March 2023, Appeal Number: 2022/250; Neutral Citation Number [2023] IEHC 78

[6] The Courts and Civil Law (Miscellaneous Provisions) Act 2023, section 16

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

[8] Duffy v Brendan McGee & Anor [2022] IECA 254

[9] Crumlish v HSE [2023] IEHC 194