Consultation Paper on Alternative Dispute Resolution - Law Reform ...

(d) The success rate is lower than in other personal injury litigation.
(e) The suspicion between the parties is more intense and the lack of
co-operation frequently greater than in many other areas of litigation. 3
6.04 In Ireland, until the establishment of a Clinical Indemnity Scheme
(CIS) under the auspices of the States Claims Agency (SCA), 4 various
insurance and indemnity arrangements had meant that each defendant to a
claim - hospital, health board, consultant, hospital doctor, or nurse - was
represented by a separate legal team. The SCA has noted that ―This led to an
unnecessarily adversarial approach to the resolution of claims, to duplication of
effort, considerably lengthened the time taken to process a claim and added
significantly to claims' costs.‖ 5
6.05 The Clinical Indemnity Scheme (CIS) was established in 2002, in
order to rationalise pre-existing medical indemnity arrangements by transferring
responsibility for managing clinical negligence claims and associated risks to
the State, via the Health Service Executive (HSE), hospitals and other health
agencies. Under the scheme, which is managed by the SCA, the State
assumes full responsibility for the indemnification and management of all clinical
negligence claims, including those which are birth-related. 6
(1) Role for ADR in Resolution of Medical Negligence Disputes:
Alternative Dispute Remedies
6.06 Most legal actions in Ireland brought by patients against medical
professionals are based on the tort of negligence. The action‘s principal
objective is to provide compensation to the patient.
6.07 Research has indicated, however, that patients often want a wider
range of remedies than litigation is designed to provide. As noted by Lord Woolf
in his 1996 Report Access to Justice, ―Some victims want an explanation or
apology rather than financial compensation, but are forced into protracted
litigation because there is no other way of resolving the issues.‖ 7 Mediation can
3 Lord Woolf, Access to Justice Final Report (1996) at Chapter 15(2).
4 The States Claims Agency was established in 2001 as a unit within the National
Treasury Management Agency (NTMA), pursuant to the National Treasury
Management Agency (Amendment) Act 2000. The SCA was established in
response to the need to manage mass claims such as the Army deafness claims
on the 1990‘s. See Report on Multi-Party Litigation (LRC 76-2005), para 1.13.
5 See www.stateclaims.ie.
6 See http://www.stateclaims.ie/ClinicalIndemnityScheme/introduction.html.
7 Lord Woolf, Access to Justice, Interim Report (1995) at paragraph14.
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