Irish Mail on Sunday, August 26, 2012
A few weeks ago the High Court dismissed a case for compensation taken by a young brain-damaged boy against a maternity hospital. The judge decided that negligence had not been proven. The boy and his parents will have to rely on often-inadequate State services without the cushion that a lump sum award would have provided. They have done so for the past ten years but now have no hope of anything better unless they can countenance a costly appeal to the Supreme Court
In another sad case a young boy injured four years ago in a car accident died only a month after being awarded €5.5 million in compensation. No-one would deny his right and his parent’s right to that money. Nothing could compensate for the loss of a child and the four years spent caring for him while fighting an uncertain court battle against the motor insurance company.
There is a better way of compensating the victims of misadventure whether caused by accident or negligence. We have known about it for decades. It has operated well in other countries but our politicians, civil servants and legal professionals seem unable or unwilling to embrace change.
The Department of Health have had committees looking at the problem for over a decade. A group set-up in 2001 to consider a no-fault compensation system for birth damaged infants is reported to have done Trojan work for some years but seems to have now disappeared without trace.
Mary Harney was the last Minister to refer to it and she was waiting on its report. If it did produce a report, it has never been published.
A separate group with a narrower brief did produce a report in 2009. It recommended the introduction of a no-fault compensation scheme covering injuries related to childhood immunisation. But nothing has been done.
To get compensation, in the absence of an out-of court settlement, it is necessary to prove negligence. But there is another way.
A truly caring society would seek to compensate people in accordance with their loss irrespective of the cause. More importantly, the compensation would be forthcoming without the need to prove that someone else was to blame and whether or not that person had the wherewithal to pay it either through insurance or their own assets.
Put simply the State would pick up the tab for compensating people for personal injury. Much of the compensation could be built into the existing social welfare and health schemes. Those who caused personal injury could still be punished but the punishment could be totally divorced from the injured person’s right to compensation.
The Department of Health did recognise the attractions of no-fault medical liability insurance when, a few years ago, the medical consultants were refusing to enter talks a few years ago on new contracts until their indemnity insurance problems were sorted out.
Their inadequate private sector scheme was replaced by the current State funded scheme which is managed by the ever growing National Treasury Management Agency. Any consideration of a no-fault system seems to have been sidelined.
No-fault insurance is not pie in the sky. It operates successfully abroad in many countries including Sweden, New Zealand, Canada and some US states. It was advocated here as far back as the 1970s in a major report on the insurance industry that, like many such reports, was left to gather dust.
To get compensation it is necessary to prove negligence and medical experts estimate that only about one in ten cases of cerebral palsy can be attributed to the type of negligence that might cause such a result. The remainder arise from pre-birth events in the mother’s womb.
But a child who is brain damaged at birth as a result of what might be described as an accident, faces a very different future than another child injured as a result of a doctor’s negligence. Yet negligence in this context is unlikely to be a particularly blameworthy occurrence but more likely the result of a momentary lapse in a stressful situation.
Irish juries tend to be generous in their compensation awards to victims of negligence. That’s particularly so in those cases where the injury is going to have a long lasting impact on a person’s quality of life. If there is any doubt they may also tend to ascribe an injury to negligence rather than an accident but in many cases it is impossible to even claim negligence.
The system is very unfair and inefficient. It can also encourage undue caution on the part of doctors to the detriment of patients and there is no provision for reassessing compensation if it subsequently proves to have been inadequate or over generous.