The Gazette 1996

NOVEMBER 1996

GAZETTE

[ Road traffic accident cases and hospital charges - a warning

hospital concerned 1 . This "average daily cost" formula is the reason substantially higher charges are sought from patients who are victims of injury arising out of a road traffic accident. The average daily rate can vary greatly from health board to health board and hospital to hospital with amounts being claimed varying from £80 to over £300 per day. The formula takes no account of the accommodation, treatment or care afforded to the patient and is, to say the least, arbitrary and unfair. There have been a number of High Court cases where the question of hospital maintenance charges has been addressed, most notably the case of Crilly vT & J Farrington & Another, 2 in which Denham J allowed the hospital a figure of £99 per day, which was the same as the semi- private rate. Denham J granted the hospital in the said case liberty to apply to explain why it considered it fair to charge an additional rate for road traffic accident cases. This case is still before the courts and its outcome is anxiously awaited. There have been similar High Court decisions. O'Hanlon J in the case of McNamee v Dunphy 1 disallowed a daily rate of £300 and allowed a daily rate of £100 and in O'Rourke v Scott A Kinlen J disallowed daily rates of £184 and £172 and allowed £100 per day. In the light of the foregoing cases, it has become standard practice to settle RTA cases on the basis that the maximum figure which hospitals and health boards are entitled to in respect of maintenance is £100 per day. Many hospitals and health boards are accepting the £100 per day as a payment on account in respect of their bills and are reserving their position in respect of the balance, in the hope that the courts will uphold the right of the hospital, in the case of Crilly v Farrington to charge maintenance charges calculated on the average

by Keenan Johnson

Most solicitors involved in litigation will be familiar with the practice of hospitals and health boards issuing accounts for hospital maintenance in road traffic cases, which are considerably higher than those normally charged to public, private or semi- private patients. The health boards and hospitals quote as authority for their right to charge higher rates in such cases, the provisions of section 2 sub-section 1 of the Health Amendment Act, 1986. The said section states as follows: "(1) Where - (a) injury is caused to a person by the negligent use of a mechanically propelled vehicle in a public place, and (b) in-patient services or out-patient services have been, are being or will be provided by or on behalf of a health board in respect of the injury, and (c) any one of the following, that is to say, the person aforesaid, his personal representative or dependant, has received, or is entitled to receive damages or compensation in respect of the negligent use aforesaid from the person liable to pay such damages or compensation in respect of that injury, or any loss, damage or expense (or mental distress in the case of a dependant) arising therefrom, the health board shall, notwithstanding anything in the Health Acts, 1947 to 1985, make a charge upon the person who received or is entitled to receive such damages or compensation in respect of the said in-patient service or out-patient services." When this legislation was going through the Senate, the Minister for Health indicated that the charge made by the health board would normally be the average daily cost per bed day in the

KeenanJohnson

daily cost. Obviously this places litigants and solicitors in a very invidious position and pending the outcome of Crilly v Farrington a solicitor is advised to take the following precautions: 1. If possible attempt to negotiate a compromise figure for maintenance charges with the hospital. 2. If possible try to get an indemnity from the insurance company in respect of any additional charges to which the hospital may be entitled. Unfortunately most insurance companies are loath to provide such an indemnity. 3. If neither of the options above are available, advise the client in writing prior to settlement of the amount that is on offer for maintenance charges, the amount being claimed and the possibility that all or part of the difference may be recoverable from him by the hospital or health board after settlement. 4. When settlement has been reached, the solicitor should write to the hospital or health board forwarding a cheque for the amount recovered in respect of maintenance and advising 333