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How to read the “news” on medical negligence

According to the Irish Independent, a High Court judge (Judge Irvine) has urged “an overhaul of negligence cases”.

The newspaper goes on to report what the judge actually said; that she believes

“new protocols and rules of disclosure would lead to early resolution and early admission of liability when justified” [in “medical negligence” cases].

There are two ideas in the judge’s beliefs, both good; that early resolution and early admission of liability are desirable goals, and that new protocols and rules of disclosure would bring these about.

The judge is right in her belief that early resolution and early admission of liability are desirable goals and may be right in her belief that new protocols and rules of disclosure would bring these about, but there is reason to doubt that they will.

There are some aspects of life that militate against such perfection;

LITIGATION IS DANGEROUS; In Ireland, there rests on a Plaintiff the burden of launching and driving forward legal claims against the Defendant. Generally, this is a heavy burden and few, if any, allowances are made for the fact that the “Plaintiff” may be aged 3 months, say. Plaintiffs like that have no money or property, but some adult acting for them may. If that adult launches the proceedings for the infant, the adult will be responsible for funding the litigation and will be at risk of becoming liable for the Defendant’s costs in the event the Plaintiff is not successful in the litigation.

LITIGATION IS A CONTEST; To date, in Ireland, in every medical negligence case coming to trial, there will have been not less than two medical experts consulted, one for the Plaintiff and one for the Defendant. Invariably, where the case results in a judgment, the experts will have differed in their opinions or conclusions (otherwise the cases would not go as far as a judgment).

DEFENCES CAN BE SPURIOUS; The obverse of the Plaintiff’s obligation to drive the litigation, is the right of the Defendant to defend against the Plaintiff’s claims. Generally, this includes a right to insist that a failure of proof on some issue, by the Plaintiff, carries no obligation on the Defendant to address that issue where the Plaintiff’s proofs have “fallen short” or have been inadequate, (rather than having been conclusively rebutted. “Rebuttal” would imply the Defendant has addressed the issue). Currently, court practice and procedure facilitate spurious defences and have eliminated the possibility of spurious claims.

 PROCESS IS NOT PERFECTION; Even in the UK currently, where the “personal injury protocols” contemplate the use of one only “expert” to produce a report (in personal injury cases, including medical negligence cases) the Plaintiff must still launch and drive the proceedings. Compliance with the protocol is sufficiently difficult to lead to a requirement that lawyers practising in the field must undertake specialist training to do so.

MONEY TALKS; Personal injury Plaintiffs and Defendants are nominally “equal” before the courts. Regardless of current court practice and procedure, Defendants normally have far more resources than Plaintiffs. The Defendant is normally indemnified by an insurance company (otherwise the Plaintiff, in launching proceedings where the Defendant is not insured, would run the risk of spending substantial sums with a risk of failing to recover compensation). This gives great advantages to the Defendants. The insurers are very experienced in defending claims and can deploy their resources in full and at speed. At a basic level, this can simply mean knowing the “right” expert to engage for any issue that may arise.