Ireland is the medicolegal capital of the world. For the amount the State spends on medical negligence litigation it could build at least four new Children’s Hospitals every decade. Worryingly, medical negligence costs are increasing annually despite a year-on-year decrease in the number of claims. 

The vast majority of negligence cases never make it to the courts, but are settled over protracted periods for large sums. The State is reluctant to allow cases to reach the High Court because the daily cost can run into tens of thousands of euro. Consequently, cases where the State has a reasonable chance of being successful are never heard.

Settlement discussions focus on the extent of the claimed negligence and the severity of the consequences experienced. There is often a tacit acceptance from the start that the case will be settled meaning that the discussion revolves around the size of a financial settlement. 

Expert witnesses

Both sides have doctors as expert witnesses. Although technically neutral they are recruited and paid for by each side. The majority of medical expert witnesses used by claimants in Irish medical negligence cases come from outside Ireland – usually from the UK. 

This is not because Ireland is unable to provide suitably qualified doctors, rather it’s because Irish solicitors prefer witnesses from outside the State. They say that medical specialty groups in Ireland are small so there is a high likelihood of conflict of interest. An expert witness working in Ireland, they contend, may be reluctant to criticise a colleague.

This might seem logical but there is a different and widely held view within Irish medical circles. Reports from the UK tend to be more critical of a doctor's performance. They find fault where others would not, exaggerate the negative effect of the doctor's care, and upgrade what might be a questionable decision or action into a cataclysmic medical failure. 

This is exactly what the claimant’s solicitor wants. It makes it harder for the defendant to negotiate forcing them towards a higher settlement fee. It also means the solicitor is more inclined to employ that expert in future cases.

If a doctor from the UK wants to work in Ireland in a clinical setting they must register with the Medical Council of Ireland (IMC). This is not a difficult process for British doctors. They are already registered with the UK’s General Medical Council (GMC). Many of the specialist qualifications are common to both countries. 

Crucially, it is not the same for expert witness work as they do not require IMC registration. A British doctor acting as an expert witness in Ireland is unregulated. As with licensing in any trade or profession, the objective is to ensure that people conduct their business to a certain standard. Failure to do so leads to withdrawal of privileges. 

It is hard to see why expert witnesses would be exempt from such considerations. Many believe that the absence of such regulation encourages UK experts to “let the handbrake off” giving opinions in Ireland that they wouldn’t dream of giving in the UK.

Patient compensation

Patients should be central to any compensation process. Patients suffering from negligence should be compensated, however humans are not machines. Sometimes excellent care does not produce the outcome that either the doctor or their patient had anticipated. 

Patients should have access to financial aid in order to improve their circumstances. Perhaps they have lost income or have incurred new expenses. It should not require them to raise a claim of negligence simply because it is the only pathway available to them. 

A “no fault” compensation scheme operates in jurisdictions such as New Zealand. Patients get compensated based on their needs and legal costs are minimised. Whenever this gets discussed in Ireland, it never crystallises into meaningful change. There are too many vested interests who benefit from the current adversarial system so the cost to the nation continues to skyrocket.

What can be done?

Government agencies should allow more cases to be taken to court. In the short term this might push the cost up, but it should dissuade solicitors and their clients from making exaggerated claims. As with personal injury claims there could be guidelines regarding the level of compensation.

Currently the expert witness process bypasses the IMC with solicitors recruiting directly from UK agencies. The IMC should insist that doctor registration is required for all forms of work including expert witness submissions. UK-based experts could still work in Ireland but they would have to adhere to the same standards as everyone else.

Private medical indemnity insurers provide cover for doctors working in the private sector. Public sector doctors also have supplementary insurance policies with these insurers. These policies cover IMC proceedings and liability insurance for expert witness work. 

These private policy premiums cost more in Ireland. The insurers say that larger premiums in Ireland are a consequence of bigger payouts and larger legal costs. When sold in the UK these policies provide worldwide cover for UK expert witnesses. This includes Ireland. The insurers are facilitating the very mechanism that is driving up their own premiums.

Local doctors should provide expert witness opinions in Ireland. Abdicating responsibility leaves the role to others less sensitive to the workings of the Irish health system. Most Irish doctors would prefer an appraisal of their care from a doctor registered in the State rather than from someone who is unregulated. 

There needs to be a register of IMC-registered doctors willing to give expert witness opinions not only in defence of their colleagues but also for claimants. Such a register should include every specialty and be freely available those in the legal profession.

Irish doctors who feel they have been subject to unfair criticism could resort to asking the GMC to investigate the bona fides of their registrants who contributed the contentious reports. While it may seem unpalatable to complain about colleagues, albeit those in another jurisdiction, it might lead to a change in behaviour. 

We still need to put our own house in order but by highlighting overzealous reporting to their own regulator we might encourage our UK colleagues to reduce the hyperbole we are currently witnessing.

The absence of regulation for expert witnesses in Irish medical negligence cases is driving our medical negligence industry into a dangerous orbit. If we are going to spend more on hospitals and less on legal fees and payouts, it’s a defect that needs to be closed.

•  Greg Fulton is Consultant Vascular Surgeon CUH and Bon Secours, Cork. He is Adjunct Clinical Associate Professor, University of Limerick.