Clinical Indemnity Scheme

Transcription

1 Clinical Indemnity Scheme Obstetric Forum Farmleigh 11 th February 2014 Obstetric Litigation The Role of the Clinical Indemnity Scheme Ita Guilfoyle Solicitor/Clinical Claims Manager

2 Clinical Indemnity Scheme 1. CIS - Origins & Objectives 2. Types of Claim 3. Obstetrics Recurring Areas of Concern 4. Duty of Care/Standard of Care 5. The Journey to the Courts 6. Old & New Methods of Resolving Cases 7. MIAB?? 8. The Way Forward 2

3 1. Origins & Objectives Established 2002 to rationalise pre-existing medical indemnity arrangements Consultant cover March 2004 Aims - Support patient safety - Minimise occurrence of clinical claims - Allied with mandate to ensure State liabilities contained at lowest level - Implement risk programmes to reduce future litigation costs 3

4 1. Origins & Objectives Cover - Public Hospitals/Clinics/Healthcare Facilities - 68,000 clinical or ancillary staff Current Claims Portfolio - 3,020 clinical claims (including 212 inquests) - Outstanding liabilities of 1bn m paid in total in 2012 (including costs) m paid in total in 2013 (including costs) 4

5 1. Origins & Objectives Key figures for transactions and resolved claims: Transactions Per Year Transaction Date 2010 ( m) 2011 ( m) 2012 ( m) 2013 ( m) ELPLPD Clinical Total transactions *Third party contributions and recoveries of 1.7m have been received by the SCA making the actual outturn for m Clinical Resolved Claims Resolved Year < 25, , , , , ,000-1,000, > 1,000, Total resolved Total Paid m Resolved Inquests

6 2. Types of Claim Settled Claims by Incident Type % Diagnosis incident Peri-operative / peri-procedure incident Treatment incident Peri-natal Other Slips/Trips/Falls Self-Harm Infection control incident Unplanned events Medication incident Blood transfusion incident Unexplained Injury/Unknown Cause Identification/Records/Documentation Incident Discharge incident Violence/Harrassment/Aggression/Abuse Inappropriate Behaviour Equipment/Device Incident Absconsion

7 2. Types of Claim Settled Claims by Speciality Surgery % 26.6 Emergency Medicine 21.2 Obstetrics 17 Medicine 14.9 Mental Health 5.8 Radiology Gynaecology Paediatrics Allied Professional Services Other Haematology Community Health Services Anaesthesia

8 2. Types of Claim Contributory Factors & Root Causes Practitioner Error % 19.4 Failure to Monitor 10.2 Delay/failure in recognising complication 9.2 Delay /Failure to treat 7.1 Delay/Failure acting on formal result 6.1 Competence/Skills/Knowledge Failure to seek consent Failure to provide adequate information 4.1 Misdiagnosis Failure/Delay to perform tests

9 3. Obstetrics Recurring Areas of Concern Injuries to Mother: 1. Caesarean Section 2. Episiotomy & 2 nd /3 rd Degree Tears 3. Pre-eclampsia 4. Fissures 5. Perineal Tears 6. Uterine Rupture & Placental Abruption 7. Symphysiotomy 8. Wrongful Death 9

10 3. Obstetrics Recurring Areas Injuries to Baby: 1. Cerebral Palsy & Brain Injuries 2. Erbs Palsy & Shoulder Dystocia 3. Injury to baby caused by forceps delivery 4. Wrongful Death of Concern 10

11 4. Duty of Care/Standard of Care The right of the State to defend cases (a) Liability care fell below medically acceptable standards (b) Causation The breach of duty/negligence directly results in the injury The perfect doctor/nurse v- The reasonable doctor/nurse strict liability Dunne v- National Maternity Hospital (1989) IRP90 11

12 6 Dunne Principles 12

13 4. Duty of Care/Standard of Care Typical Issues Provision of improper or inadequate care Failure to protect mother or baby against risk of foreseeable harm Failure to consult with more experienced medical professionals when practice situation is outside level of own knowledge and skills Failure to refer to other medical professionals when complications or deviations arise 13

14 4. Duty of Care/Standard of Care Medication errors Keeping inadequate records of observations, care given and medication administered Difficulties arising during instrumental deliveries Failure to adequately monitor Consent - failure to warn of risks 14

15 5. The Journey to the Courts Report of Incident Freedom of Information Request Pre-Trial Letter of Claim Proceedings Setting out Allegations of Negligence Investigation of Claim a) Treating Clinicians/Staff b) Independent Experts Concession of Liability v- Defence Settlement v- Trial 15

16 6. Old & New Methods of Resolving Cases (A) Old fashioned settlement negotiations full and final lump sum payments (B) Periodic Payment Orders Certain payments made on a periodic basis throughout the lifetime of the injured party as their needs arise 16

17 6. Old & New Methods of Resolving Cases Criticism of the Lump Sum Award Approach The system encourages a conflict of evidence with both parties seeking the best possible outcome. The court is required to determine the level of future damages by seeking to resolve conflicting expert medical and other evidence. This presents the court with the almost impossible task of providing fair and just compensation where life expectancy is uncertain or disputed. Arguments in Favour of the Lump Sum Award Conclusiveness and certainty in the resolution of a claim. Insurer (defendant) can close the book. Plaintiff has greater financial autonomy (Report of Working Group on Medical Negligence and Periodic Payments, P. 12.) 17

18 6. Old & New Methods of Resolving Cases Arguments in Favour of PPOs Lump sum inadequate and inappropriate for long-term/permanent injuries. Pay for future care, treatment and medical equipment when the need actually arises. Capacitated adults, entitled to settle claims for damages as they deem appropriate. 18

19 6. Old & New Methods of Resolving Cases Twenty-four cases have settled on the following basis: Payment of a contingency lump sum. Two years future care costs: - Case adjourned for two/three years with the aim of agreeing a PPO arrangement with effect from return date (assumes introduction of legislation). 19

20 6. Old & New Methods of Resolving Cases Interim Settlement with Potential PPO in 2 Years Item Damages in General damages 450,000 Retrospective care costs 130,000 Future care costs 2 years only 100,000 Aids and appliances 100,000 Assistive technology 50,000 Future accommodation costs house 350,000 Accommodation costs to date i.e. alterations 100,000 Miscellaneous special damages travel and car 20,000 Future loss of earnings 350,000 Total 1,650,000 20

21 (C) Alternative Dispute Resolution ADR Mediation L.R.C. recommends ADR processes, including mediation and conciliation, in clinical negligence cases. Early neutral evaluation was envisaged as: - A process that occurs at an early stage of civil proceedings in which the parties state the factual and legal circumstances to an independent third party with suitable knowledge of the subject matter of the dispute, and in which the entirely neutral evaluator provides an evaluation to the parties as to what the likely outcome of the proceedings would be if the claim proceeded to a hearing in court. (Para 7.24) 6. Old & New Methods of Resolving Cases 21

22 6. Old & New Methods of Resolving Cases (C) Alternative Dispute Resolution cont/d. Mediation Rarely used in Medical Negligence Cases. Why? - Fear of having revealed one s hand should mediation not be successful. - Costs. Who pays them? - Bias in favour of formal trial of liability and causation issues. - Quality of the mediation chairperson Improvements to Current Regime Introduction of Pre-Action Protocols New Rules of Court Case Management 22

23 7. MIAB The Current Injuries Board and its Role Admission of liability and assessment of damage Cases Outside its Remit Liability Disputed Ongoing injury Previous injuries causation Psychological injury 23

24 Medical Negligence 7. MIAB Numerous facets to the injury/multiple injuries Many treating clinicians and other hospital staff involved Causation - often a major issue Many independent experts Ongoing injury/symptoms 24

25 7. MIAB Awards by Claim category The graph below shows that in 2012, 75% of all awards were in respect of Motor cases, while 8% related to Employer s Liability and 17% related to Public Liability. Breakdown of total no. of Awards in 2012 by value and Claim Category 64% of InjuriesBoard.ie Awards are under 20,000 and 91% are under 38,000 as per the table below. The profile of personal injury claims has remained relatively consistent since the Board became operational. Injuries sustained were and continue to be predominantly soft tissue or fractures, or a combination of both with associated compensation award levels of approximately 90% of such cases below 38,000 and two thirds below 20,000. Breakdown of Total No. of Awards in 2012 (by Value and Claim Category) Average Value Category ( 's) Motor Liability Employer's Liability Public Liability Total <20k 5, , k 1, , k >100k All 7, ,707 10,136 Source: [accessed 3 rd February 2014] 25

26 7. MIAB Injuries Board 2012 Statistics Average Award - 21,502 Highest Award - 697,495 Lowest Award - 66 Awards Accepted/Sent to the Courts 2012 Total No. of Awards 10,133 Total Awards Accepted 6,124 = 60% 2011 Total No. of Awards 9,833 Total Awards Accepted 5,075 = 51% 26

27 8. The Way Forward Medical Identify & Rectify Effective risk assessment Implementation of recommendations Training Fair and just approach CIS Reciprocal co-operation with Enterprises Efficient and thorough investigations Early assessment (if possible) Identify means of resolution to suit specific case 27

28 Legal 8. The Way Forward New Focus on Alternative Methods of Resolution Mediation PPOs Case management system 28

29 Contact Details Clinical Indemnity Scheme (01) Emergency Medico-Legal Helpline Website: (01)

30 Clinical Indemnity Scheme Thank you! 30