When Bernie O’Reilly’s husband Tony died during an elective surgery for bowel cancer, she says she couldn’t understand what had happened.
His death, in 2006, left her unhappy with aspects of his care and she asked many questions of the consultants who operated on him. After his inquest, which identified his cause of death as anastomotic leak, which is a major complication of colorectal surgery, she still felt there were resolved issues.
It was at this point she considered litigation. “I had to get three expert reports from England. For me, the main issue was how Tony’s operation was handled. I spent about €10,000 [on the reports], but there were still no answers.”
After three years, “I didn’t feel I was any closer to getting answers and there was no end in sight. I was never really looking for compensation, I just wanted the truth,” she said.
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Ultimately, Ms O’Reilly halted the legal action due to the huge financial risk involved. There was, she said, the possibility the family farm might have been lost.
“Lay people have a different opinion to medical people. There needs to be a safe place to have these discussions. But I’m still unhappy that I never got a resolution.”
According to the Medical Protection Society (MPS), which provides indemnity cover for 16,000 doctors and other healthcare professionals in Ireland, the average cost of a legal claim for medical negligence in Ireland is almost three times higher than in the UK, and cases take over 50 per cent longer to resolve.
The report by the society, published in January, said a claim in Ireland takes just over four years (1,462 days) on average to resolve, which is 14 per cent longer than in South Africa (1,279 days) and 56 per cent longer than in Hong Kong (940 days), the UK (939 days) and Singapore (938 days).
MPS has urged the Government to deliver pre-action protocols to help speed up clinical negligence claims.
These protocols would be guidelines, laid out through legislation, explaining the steps a court expects parties to take before a claim can commence, with the intention of encouraging them to settle outside of litigation.
Dr James Thorpe, deputy medical director at MPS, said the society sees “first-hand” the impact the “painfully slow claims process” has on the mental wellbeing of doctors.
“Patients and family members are clearly also suffering due to the current system. No patient who experiences harm due to clinical negligence in Ireland should have to wait an unnecessarily long time to receive compensation, and neither party involved in the claim should be dragged through a process that is longer than it needs to be,” he said.
“With damaging effects to doctors’ and patients’ mental wellbeing, delays to patients receiving compensation, and eye-watering legal costs which impact on HSE and the cost of doctors’ indemnity – the status quo is simply no longer sustainable.”
Scarlett O’Sullivan, a senior associate solicitor at Callan Tansey, representing patients in clinical negligence claims, said there are “loads of reasons” why these claims take longer to conclude in Ireland than elsewhere.
“If a client comes in to me, it can take well over 12 weeks to get medical records from the HSE. And then at the point when we finally have all the necessary documentation and are ready to apply to the High Court for a hearing date, there are usually no dates available for around 12 months,” she said.
“For example, I applied for a date in January 2024, and I didn’t get a date until March 2025. Often it can be two years before an initial hearing even takes place.”
Ms O’Sullivan said taking a case involves a “huge financial investment for the reports, which can cost several thousand”.
“And most of the time they’re not seeking compensation. They just want answers. Or they say they don’t want another family to go through this,” she said.
In recent weeks, an interdepartmental working group on the rising cost of health-related claims published a report which also recommended, among other measures, the implementation of pre-action protocols and the establishment of a vaccine damages scheme.
The working group found the estimated outstanding liability for healthcare claims in Ireland increased by almost two thirds between 2018 and 2022, from €2.8 billion to €4.6 billion, and “could rise by multiples over the next two decades if unchecked”.
Furthermore, research conducted with people who had taken legal cases around medical negligence illustrated the human cost, with participants describing the process as “triggering, re-traumatising, jarring, insulting, shocking, horrible, not fit for purpose, and a battle”.
Minister for Health Stephen Donnelly welcomed the report and said he would be setting up a group to ensure that the recommendations were implemented “without delay”.
Ms O’Reilly said the process of medical negligence cases is “dreadfully stressful”, even though she withdrew her case.
“You’re haemhorraging money. Time is constantly ticking on. There is human suffering for everybody, the family, the doctors. There has to be an easier way. There has to be a shorter, more compassionate way.”
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