The Gazette 1990

GAZETT INCORPORATE D LAWSOCIETY OF IRELAND Viewpoint

j A nua R y / february

1990

GAZETTE

In this Issue Viewpoint

Vol.84 No.2 March 1990

43 45 47 49 57 60 63 64

British Medical Association has proposed a scheme which would recommend the inclusion of pain and suffering. Trivial and minimum disability accidents are excluded, a victim must have been off work for at least 30 days or been hospital- ised for 10 days or more before coming within the scheme. Pay- ments under the scheme would take account of other sources of income such as disability benefits under a Social Welfare Scheme and there would be a ceiling - twice the national average wage has been proposed. The scheme would assume indefinite responsibility for permanent injury and would be inflation-indexed. "No-fault" schemes are based on the proposition that accidents are inevitable and that it is reason- able that those who are unfortun- ate enough to be the victim of an accident should be entitled to compensation as a matter of course rather than have to plough the difficult furrow of litigation. There may be strong arguments against introducing "no-fault" schemes for all types of accident but this should not preclude serious consideration being given to them in the area of medical negligence. It would not be too difficult to envisage a "no-fault" scheme for medical negligence being funded partly by contributions from the medical profession and partly by State funding. The option of civil proceedings could of course be kept open for injured parties. It is tempting to say that almost anything would be better than the present unsatisfactory arrange- ments where it is commonly'alleg- ed that many medical negligence actions never get off the ground because of the difficulty of getting satisfactory evidence and because the costs involved are generally much greater than those in other personal injury claims. It may be that professional bodies of lawyers and doctors in Ireland should get together to take up the torch which has been lit in the United Kingdom by the British Medical Association. • 43

It is remarkable how little note appears to have been taken of the remarks of Mr. Justice McCarthy in his judgment in the case of Hegarty -v- O'Loughran & Anon, 8.2.1990 when he pointed out the difficulties of introducing the "discoverability" rule in relation to the operation of the Statute of Limitations in medical negligence cases without at the same time bringing in a "no fault" scheme for such cases. Two recent cases have high- lighted the enormous costs, both in monetary and other aspects, of the pursuit of serious claims arising out of alleged medical negligence. A number of factors contribute to the high costs involved. Frequently the issues are complex. Unlike personal injury claims arising out of motor accidents or accidents at work, expert evidence is usually required to establish negligence. In addition there are normally several defendants in these actions, one or more doctors, a hospital, a health board and possibly a pharma- ceutical firm may all be involved. Not only does this lengthen the trial of the action but it is notorious that actions with more than one defendant prove particularly difficult to settle. The Supreme Court in the Dunne case, indicated that there should be a relatively modest "cap" on the level of general damages to be awarded while leaving the amount of special damages to be worked out in each individual case. It seems an appropriate time to con- sider whether a "no-fault system" would not provide a more satis- factory solution to the problem and be in ease of all parties. It is notorious that premiums for in- surance paid by medical practi- tioners are escalating and figures produced by the British Medical Association suggest that of the £90 million per year paid in insurance premiums less than half of that sum reaches injured patients. Sweden operates a scheme under which compensation is paid for unforeseen mishaps and only compensates physical injury. The

Mr. Justice Brian Walsh

Presidents Column

Nervous Shock, where are we now?

Lawbrief

People & Places Practice Notes

Psychological Trauma Law Society Annual General Meeting Law Society Retirement Plan Younger Members News

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Correspondence

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