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Healthcare Litigation: Recap of 2021, What’s in the Pipeline for 2022

Hybrid hearings here to stay

2021 saw through another year of COVID-19 related restrictions although physical court hearings resumed for all personal injuries cases by the end of June. Hybrid hearings have become popular especially in medical negligence litigation. This approach allows for key witnesses to give evidence in person and for other witnesses, including expert witnesses who may be based outside of Ireland, to give evidence remotely. Hybrid hearings are likely here to stay given the flexibility they afford as we continue to adapt in these challenging times.

Likely attitude of the Courts to the “covid excuse”

Recently, Brady v Byrne[1] provided some insight as to how the courts may treat delays or disruptions caused by COVID-19. In this case the Plaintiff’s solicitor sought to explain a delay in serving a Personal Injuries Summons due to the impact of the pandemic including the closure of his office for a number of months in early 2020. An application to extend time for service of the Summons was made in February 2021. The court found that while a certain amount of leeway must be allowed after the initial shock of COVID-19, the legal profession, like other businesses, adapted. Deadlines continued to arise and to be met. While the onset of the pandemic was beyond the ordinary or usual, the legal world had adapted. The court decided that the Plaintiff’s solicitor ought to have been able to serve the Summons or seek an extension of time to do so shortly after his office re-opened in May 2020.

Personal Injuries Guidelines – under attack?

The Personal Injuries Guidelines came into effect in April 2021 with a view to reducing the level of awards and providing more consistency in awards. The Guidelines were met with intense scrutiny. Concerns were expressed regarding the number of claims that will now fall within the remit of the District Court. The main concerns relate to whether the District Court has the capacity or resources to deal with complex personal injury and medical negligence claims. In addition, concerns were raised that some claimants may be denied access to justice as it may not be economically viable for many solicitors to litigate in the District Court given the low scale of legal fees. Separately, the second half of 2021 saw an increasing number of claims being lodged in the High Court challenging the constitutionality of the laws underpinning the Guidelines. We will have to wait and see how these constitutional challenges will unfold during 2022.

New default rules and “unless orders”

A further reform in November 2021 was the introduction of new High Court rules dealing with applications for Court Orders where Appearances, Defences and other pleadings have not been delivered within the appropriate time limits.[2] These default rules represent a radical change especially regarding motions seeking judgment in favour of the Plaintiff if a Defence is not delivered. Judicial discretion to strike out these motions and allow an extension of time within which to deliver the Defence has been removed. Instead, the Court must award judgment in favour of the Plaintiff unless it is satisfied that justice requires an extension of time. Currently, it is unclear what circumstances the Court will consider as being in the interest of justice to make such an extension. Where the court grants an extension of time, the court shall make an ‘unless order’, meaning that judgment will be ordered in favour of the Plaintiff unless the Defendant delivers the Defence within the extended time period. The obvious benefit of this change is that is expedites the litigation process where only one court hearing is required, thereby reducing costs and improving court efficiency. Unfortunately, these new rules will present significant challenges in medical negligence litigation where a Defendant needs to obtain an expert medical report before being in a position to deliver a Defence which adequately addresses all of the Plaintiff’s allegations. The threat of an “unless order” will put Defendants under significant time pressure to obtain all necessary medical expert reports within a very short timeframe.

Pleadings must be more specific

2021 also saw a renewed focus on compliance with the Civil Liability and Courts Act 2004 with a number of court judgments emphasising the need for precision and particularity in pleadings.[3] The view of the courts was that whilst the 2004 Act was not a regime of maximum disclosure, it did impose obligations of enhanced disclosure on both the party bringing and defending the claim to enable them to fairly prepare for trial. Compliance with the 2004 Act is of key importance in medical negligence claims where the Plaintiff should plead the specific breaches of duty relating to the medical treatment provided. Plaintiffs must also adequately specify the injuries which arose due to those breaches as distinct from the presenting injuries or medical condition which required the medical treatment in the first instance. In similar terms, a Defendant should be specific as to which allegations are being admitted or denied. This can often prove challenging if there is a delay in obtaining expert medical opinion before the deadline for delivering a Defence.

The future of PPOs and the discount rate

Periodic Payment Orders (PPOs) are no longer being used as a means to compensate those who have suffered catastrophic injuries since the court determined in 2019 that the current legislative scheme underpinning PPOs could likely result in under-compensation where the cost of future care and medical treatment needs might not be met.[4] The current discount rate, i.e. the interest rate applied to determine the current value of the cost of future losses, was decided by the High Court and upheld by the Court of Appeal in 2015 in the case of Russell v HSE.[5] It remains to be seen if the Minister for Justice will take any legislative action to prescribe a different discount rate in 2022 which might see a return of PPOs. In the meantime, there has been an increase in attempts by solicitors representing catastrophically injured parties to apply a lower discount rate (to that decided in Russell) to the calculation of future losses with a view to significantly increasing the value of those claims.

PIAB authorisation not required in defective medical products claims

In November 2021, it was confirmed in the case of Creedon v De Puy[6] that a personal injuries claim relating to a defective hip implant received during surgery did not require a PIAB authorisation prior to issuing proceedings. This clarity is welcomed but legal advisors should be aware that if they choose to apply for an authorisation in any event, the statutory limitation period continues to run while the claim is in PIAB.

Top 2021 insights from our team

The Personal Injuries Guidelines were introduced in April 2021 to reduce the level of awards in personal injuries claims and to achieve greater consistency in awards across the board. In this article, we discussed the potential impact of the new Guidelines on medical negligence claims, highlighting the significant difficulties that may arise in respect of multi-layered claims. Of particular note is that the Guidelines are also likely to affect the decision-making process of the CervicalCheck Tribunal, which has started to hear more cases.

In the Court of Appeal case of Crean v Harty[7], the Appellant claimed that he had not provided consent for an operation. The clinician denied in its Defence that consent was deficient though did not provide sufficient reasons for this denial. This ultimately led the Court to rule in the appellant’s favour, as it held that the denial constituted a positive assertion that consent was appropriate. In reaching its decision the Court examined the wording of the Civil Liability and Courts Act 2004 and found that it imposed obligations of enhanced disclosure to fairly enable all parties to prepare for trial. This approach was followed in the subsequent case of Morgan v ESB.[8]

Hanrahan Waterstone & Ors[9] saw the High Court taking a firm stance as to the consequences that may arise where a doctor/hospital becomes aware that a claim for medical negligence is being advanced on an inaccurate set of facts. In this case, the treating doctor became aware of certain inaccuracies in the medical records that had not been previously brought to the Plaintiff’s attention and were only revealed on the tenth day of trial. The Court found that the entire set of proceedings could have been avoided had the inaccuracies been disclosed in advance and proceeded to dismiss Ms Hanrahan’s claim in its entirety. The implications of this failure were that the Court decided not to award costs to either party – save that Ms Hanrahan was allowed outlay along with expenses for her expert witnesses.

This issue was looked at by the Supreme Court. The generally accepted position is that an expert report is required in order to ground allegations in professional negligence proceedings. However, the absence or lack of access to such an expert report is not always fatal. The key takeaway message is that a reasonable basis must exist before professional negligence proceedings are issued.

The Court of Appeal judgment of McCormack v Timlin & Ors[10] in July 2021 focused on the importance of judgments having to adequately explain the basis for their findings and set aside the High Court decision in this case for failing to do so. The Court was also critical of the general approach being adopted in medical negligence claims, namely that the key issues in dispute are not being narrowed in advance of trial. The Court also hinted that practitioners may benefit from applying for case management in order to do so.

In December 2020 the Civil Justice Review Group published its recommendations for an overhaul of the civil justice system in Ireland. Here, we explored the recommendations that apply to procedures for managing medical negligence claims such as the introduction of pre-action protocols (PAPs), the future of Periodic Payment Orders (PPOs) and the progress being made towards establishing a formal case management system in Ireland. It remains to be seen if there is any progress on reform in this regard during 2022.

The issues associated with multi-party litigation in Ireland were addressed in the Civil Justice Review Group’s recommendations that were published in December 2020. The Group found that there was a need to legislate for a comprehensive Multi-party Action (MPA) procedure in Ireland and referred approvingly to the Group Litigation Order (GLO) model that is currently invoked in England and Wales. In this article, we outlined how GLO would operate in practice and the types of cases that may benefit from this procedure. We also produced a short vlog to discuss some of these points in further detail which can be viewed here

Our Employment Law colleagues provided some top tips for health sector employers to consider. As the vaccine rollout continues, it presents both opportunities and challenges for employers in the provision of a safe place of work, particularly in workplaces such as hospitals and nursing homes.

For more information on any of these developments, contact a member of our Medical team.

[1] [2021] IEHC 778

[2] Rules of the Superior Courts (Procedure on Default) 2021

[3] Crean v Harty [2020] IECA 364, Morgan v ESB [2021] IECA 29 and McGeoghan v Kelly [2021] IECA 123

[4] Hegarty (a minor) v HSE [2019] IEHC 788

[5] [2015] IECA 236

[6] [2021] IECA 297

[7] [2020] IECA 364

[8] [2021] IECA 29

[9] [2021] IEHC 183; [2021] IEHC 274

[10] [2021] IECA 96

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