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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.

Litigation

Currently, in the Science Gallery of Trinity College at The Naughton Institute, Pearse St. Dublin 2, two items of interest are to be seen; an invention to assist child birth using gravity (no woman was consulted in the design of this machine) and the application for the patent on the invention. One is a machine and the other is an illustrated description of the machine. The words are more important than the illustrations. They were written by a US patent lawyer. Patent lawyers, like patent agents, are highly paid. They invent nothing (usually) but are skilled at describing things comprehensively, with precision. If they fail, variations of the poorly described invention may undermine the market for the true inventor.

Likewise, in court pleadings, costly difficulties may arise if a case is not pleaded in accordance with the rules of court.

Ultimately, the merit of  pleading a case properly is this; it compels the pleader to show that his/her complaint is legally recognised (or, by the defendant, that the complaint is not legally recognised).

Lay litigants, generally, are not just people without lawyers; they are people who think they are equal to lawyers. Often, their pleadings show otherwise.

Irish superior courts are, in principle, conducted on the basis of certain values, often implicitly rather than explicitly. They are:

  • A concern for accuracy;
  • A liking for hard facts;
  • A distinction between fact and opinion;
  • A dislike of emotional display;
  • An hostility to exaggeration;

These values inform the attitude of the court to pleadings. Pleading that ignores these values will fail in its principal purpose; to articulate a complaint and have it understood by the intended recipient.

Law Society submissions on Tobacco Plain Packaging to the Oireachtas Health Committee

Vice Chair: We are considering the heads of the Bill dealing with tobacco plain packaging. As members are aware, the general scheme of the Public Health (Standardised Packaging of Tobacco) Bill 2013 was referred to the joint committee for consideration shortly before Christmas. We will now hear from witnesses from the Law Society of Ireland regarding their views on the proposed legislation in this regard. I welcome Mr. Ken Murphy, director general, and Mr. John P. Shaw, president of the Law Society of Ireland. They are very welcome to the meeting.

Before we commence I wish to remind them of the position regarding privilege. Witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not comment on, criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable. I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

I invite Mr. Shaw to make his opening statement.

Mr. John P. Shaw: I hope I will not find myself in need of privilege but I can come back to that. The Law Society of Ireland is the representative, educational and statutory regulatory body for solicitors in Ireland. I have the honour this year to be the president of the society, representing some 10,000 members the length and breadth of the country.

(more…)

Request for clarification from Law Society on Plain Packaging

Arising from the Law Society’s presentation to the Oireachtas Joint Commission on Health and Children regarding proposed plain packaging for Tobacco products, a number of solicitors have written to the President of the Law Society, the Director General and the IP Committee.

Amongst other issues, we have requested that the following questions be addressed.

  1. whether the role and functions of committees (other than those performing regulatory functions) have been specified by the Society;
  2. whether the Society has a policy on lobbying by and making submissions in the name of the Society and its committees in relation to matters of policy;
  3. what the policy of the Society and its committees is in relation to conflicts and declarations of interest when making submissions on behalf of the Society;
  4. on what basis the views of the IP Committee were represented as having been endorsed by the Society and its members as a whole; and
  5. in the apparent absence of such an endorsement, confirmation that the Society will clarify immediately to the Oireachtas Committee that the views expressed in submissions made to date are those of the IP Committee alone.

In the absence of a satisfactory response, particularly in relation to items 4 and 5, by Wednesday 19 February 2014 we intend to write to the Oireachtas Committee disassociating ourselves from the submissions made.

Smoke and Mirrors

The Minister for Health is planning to restrict the advertising of cigarettes.

There are good reasons to think he is not moving fast enough. Read this letter of September last from the Association of Attorney Generals (of the USA) asking the Food and Drug Administration to control the promotion of e-cigarettes.

This is reminiscent of the great tobacco litigation of the USA beautifully represented by the Statement of Claim of the Minnesota Attorney General. See the documents in that case HERE.

The Attorney General stuck Big Tobacco with its own misrepresentations. He pleaded (in the USA they say “pled”; do not do that) that Big Tobacco undertook to research the issue of smoking and health and report all facts to the public. In fact the defendants suppressed research, hid information on the harmful effects of smoking and suppressed the marketing of a “safer cigarette”.

Ultimately, the cases settled in the Master Settlement Agreement.

The bad news is that Big Tobacco survived and is now prospering with the promotion of e-cigarettes.

Air Travel Accidents

Regulation (EC) No 2027/97 (as amended by Regulation (EC) No 889/2002) requires air carriers in the EU to give the following summary of a passenger’s rights on the air ticket.

“Air carrier liability for passengers and their baggage

This information notice summarises the liability rules applied by Community air carriers as required by Community legislation and the Montreal Convention.

Compensation in the case of death or injury

There are no financial limits to the liability for passenger injury or death. For damages up to 100 000 SDRs (approximate amount in local currency [€88,098]) the air carrier cannot contest claims for compensation. Above that amount, the air carrier can defend itself against a claim by proving that it was not negligent or otherwise at fault.

Advance payments

If a passenger is killed or injured, the air carrier must make an advance payment, to cover immediate economic needs, within 15 days from the identification of the person entitled to compensation. In the event of death, this advance payment shall not be less than 16 000 SDRs (approximate amount in local currency [€14,095])

Passenger delays

In case of baggage delay, the air carrier is liable for damage unless it took all reasonable measures to avoid the damage or it was impossible to take such measures. The liability for baggage delay is limited to 1 000 SDRs (approximate amount in local currency [€880.98])

Destruction, loss or damage to baggage

The air carrier is liable for destruction, loss or damage to baggage up to 1 000 SDRs (approximate amount in local currency [€880.98]). In the case of checked baggage, it is liable even if not at fault, unless the baggage was defective. In the case of unchecked baggage, the carrier is liable only if at fault

Higher limits for baggage

A passenger can benefit from a higher liability limit by making a special declaration at the latest at check-in and by paying a supplementary fee.

Complaints on baggage

If the baggage is damaged, delayed, lost or destroyed, the passenger must write and complain to the air carrier as soon as possible. In the case of damage to checked baggage, the passenger must write and complain within seven days, and in the case of delay within 21 days, in both cases from the date on which the baggage was placed at the passenger’s disposal.

Liability of contracting and actual carriers

If the air carrier actually performing the flight is not the same as the contracting air carrier, the passenger has the right to address a complaint or to make a claim or damages against either. If the name or code of an air carrier is indicated on the ticket, that air carrier is the contracting air carrier.

Time limit for action

Any action in court to claim damages must be brought within two years from the date of arrival of the aircraft, or from the date on which the aircraft ought to have arrived

Basis for the information

The basis for the rules described above is the Montreal Convention of 28 May 1999, which is implemented in the Community by Regulation (EC) No 2027/97 (as amended by Regulation (EC) No 889/2002) and national legislation of the Member States.”

Essentially, the EU has subscribed to what is called the Montreal Convention. It is a great improvement on the original international instrument governing international air travel, the Warsaw Convention of 1929. The principal purpose of the Warsaw convention was to limit the airlines’ liability for loss, injury or death.

Because the Montreal Convention is international it has generated oddities. It is open to interpretation by national courts and several national courts have interpreted it, not least the US Supreme Court. The courts of other nations and lower courts have tended towards looking to the words of those interpretations at the expense of the words of the Convention.

For Member States of the EU it is important to note that the Convention is law in the EU pursuant to Regulation (EC) No 2027/97 (as amended by Regulation (EC) No 889/2002). This, of course, includes Ireland. The Montreal Convention is law in Ireland also under the Air Navigation and Transport (International Conventions) Act 2004.

 Passengers and crew. The Convention applies only to passengers.

 Loss. According to interpretations of the Convention, it applies only to personal injury, death or loss to or of baggage. That’s it.

Exclusivity. According to interpretations of the Convention, it is the exclusive and only remedy for passengers for claims arising in connection with air travel.

Accidents. The Convention applies only to cases of accident. The Convention does not define “accident” so the national courts have done so. Not surprisingly, there is no fixed general meaning to “accident”. Notions of “unexpected”, “unintended” and “intended” have popped up in the discussion. It has been held to include a sexual assault on one passenger by another passenger and an attack by terrorists; food poisoning is an accident as is scalding by hot drink, but disgust at airline food is not an accident. Contracting pneumonia from the poor cabin air was an accident. Tripping on shoes or blanket bags on the floor have been held not to be accidents as those objects are said not to be unusual or unexpected.

 Compensation. There is no obligation on the passenger to prove negligence on the part of the airline, unless the passenger/plaintiff is seeking damages in excess of the SDR 100,000 limit.

Defamation. The Irish High Court has found that the Convention rights do not extend to claims for defamation and that, being exclusive, there is no right in a passenger to claim for defamation arising in connection with an international journey.

Words, words, words

The new Chinese year, just commenced, is the Year of The Horse. We lost a lot when the horse ceased to be a major source of power and transport. Prior to that, practically everybody personally knew the meaning of phrases like; “closing the stable door after the horse has bolted” or “live, horse, and you will have grass”. We even knew what a cock-horse was.

This knowledge shielded us from official obfuscation. No bulletin, however mendacious in its departure from the truth, could succeed when it referred to horses.

Not so in the case of modern transport.

We do not immediately apprehend the essential facts of an accident involving a large ferry taking to sea with its bow doors open, as happened in the ironically named “Herald of Free Enterprise”.

What a perfect metaphor, for Ireland in the Tiger Economy, that ship was. I am arguing for the case where our own domestic world can tell us about some other world without fail. In such a case we are protected from the abuse of words like “independent”, in the sense of “an independent judge” or “an independent arbiter”. Often, even identical twins would qualify as “independent” (of each other) in those senses, where simply being a discrete sentient being would qualify you.

One day, soon, we are going to need to rely on an independent judge. That judge will have to decide if Ireland is a “forum non conveniens” to hear a slew of personal injury actions arising from an aircraft accident. The accident could take place anywhere; all that is needed is that Ireland should have a connection with the people injured, or the company running the airline, or the company maintaining the aircraft or, even, be the place where the accident occurred.

For a plaintiff, Ireland is not the first choice of forum. We make plaintiffs write a claim letter within 2 months of the accident. We make them apply to the Injuries Board, where they are urged to proceed without the benefit of legal assistance. We steadfastly insist that personal injury victims must stand alone; they must not be allowed to act collectively. We insist that they lose their case if they are too slow and fail to litigate within the absurdly short period of two years of the accident. We make them describe, in excruciating detail, the documents they say they need disclosure of by the defendant, to win their claim. We make them prove the relevance of those unseen documents. If some of those documents are in the possession of a third party (a regulator, say) we make them pay for the production of those documents “up-front”.

Enough said; Ireland is forum non conveniens.

The Ambulance Service

Medical negligence is somewhat of a specialist area for lawyers. Not every solicitor will firstly recognise a culpable act of commission or omission by a medical person and secondly will know how to create a case that will win in court.

The ambulance service, the humblest element of the health care system is the exception to this. When you call for an ambulance, you need it urgently, usually. The despatcher will, usually, elicit the cause or nature of the emergency on the telephone.

If the ambulance never comes, or comes too slowly, it is clear to everyone that an error has occurred and the usual inhibiting factor (ignorance) precluding litigation is now gone.

This, amongst others, is a major reason for the concern expressed by the Minister for Health at poor response times in the ambulance service.

That the ambulance personnel are answerable for poor service is clear.

In Taaffe v East of England Ambulance Service NHS Trust (2012) EWHC, the court found that the ambulance staff were negligent in failing to advise a patient to attend hospital for an examination of her symptoms for which her family had called out the ambulance. The patient died five days later of a heart attack.

The court said of the staff;

“Although the paramedics’ task was a difficult one, as no doubt it often is, when all the information which should have been available to them was considered it could not properly be concluded that Mrs Taaffe’s chest pain was not cardiac in origin; the information properly available to them did not permit that to be safely or properly excluded. I accept Dr Moore’s evidence that the paramedics, on the facts of this case, should have strongly advised Mrs Taaffe to attend hospital for further assessment and I find that had she be given such advice she would have accepted it and attended hospital. Had she done so the evidence demonstrates on the balance of probabilities that her condition would then have been treated and her life saved.”

In the Taafe case, the ambulance arrived seven minutes after being called. The case was fought on the basis that the staff had fallen below the standard of average ambulance personnel.

This is not the standard that would apply if the ambulance is late or does not arrive. The Health Information and Quality Authority has set response times for the ambulance service. In the absence of exculpatory explanation of a delay or a failure to attend when called, the ambulance service is going to be clearly in default.

Defaults that cause injury or death expose the service to liability for those injuries and deaths.

Irish Water; tears ahead?

I think “public procurement” is the ruling idea currently in the Irish Water revelations. The company is changing the description of the subject of the contracts which it first said were “consultancy” contracts.

Now, it says they are “provision of services” contracts.

In either event, those contracts are, clearly, of great value and easily qualify for mandatory use of public procurement procedures.

It is illegal to award contracts without using the proper and appropriate public procurement procedures.

The Department of Finance says there is an exceptional procedure which can be used:

“Contracting authorities negotiate, without advertising, the terms of the contract directly with one or more parties. This is a departure from the core principles of openness, transparency and competition and is a very exceptional procedure”

and

“It should be noted that definitions of ‘exceptions’ and ‘urgency’ are strictly interpreted by the Commission and the Courts. Factors giving rise to urgency must be unforeseeable and outside the control of the contracting authority. Where one of these exemptions is invoked, the contracting authority must be able to justify the use of the exemption”

HSE CTIF

The title means “Health Service Executive Clinical Trial Indemnity Form”.

In Ireland a clinical trial (which covers the testing of proposed pharmaceutical products) must be approved by an Ethics committee (of a hospital, say) and the Irish Medicines Board.

Because of the legal complications of supplying products on which, effectively, no assurances of safety can (or will) be given, it is standard practice for “the Hospital”, “the Authority”, “the Investigator” and “the Sponsor” to sign a Health Service Executive Clinical Trial Indemnity Form, providing for the payment of compensation without proof of fault to the injured participant in the trial.

In short, if there is any doubt about the sale of such products by a Hospital to a patient the original circumstances of the supply of the product to the Hospital will be recorded in a HSE CTIF. It will exist in quadruplicate and in four places.

That’s good evidence.

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