MANAGING A COMPLEX AND DIVERSE CLAIMS PORTFOLIO

• The SCA was managing 8,275 active claims with an estimated outstanding liability of €1.79bn across 129 State authorities at end 2015.
• The net cost of resolving and managing ongoing active claims in 2015 was €221.7m – a saving of 18% against the independent actuarial assessment of €271.7m.
• The SCA resolves the majority of claims by negotiating a settlement, either directly with the plaintiff’s legal advisors or through a process of mediation. 97% of clinical negligence cases handled by the SCA are settled without the necessity for a contested court hearing.

MATERNITY SERVICES ARE A RISK MANAGEMENT PRIORITY

• Maternity services claims comprised €0.9bn of the estimated outstanding liability. In October 2015 the SCA published a five year review of clinical incidents and claims in maternity and gynaecology services.

REDUCING LEGAL COSTS

• In 2015 the SCA settled 112 bills of cost received from third parties for €18.1m – a saving of 42% on the€31.3m claimed.

NEW ICT SYSTEM TO ENHANCE RISK MANAGEMENT AND MANAGE CLAIMS

• In 2015 the SCA commenced the rollout of the National Incident Management System (NIMS) across the public healthcare sector and other larger State authorities.
• Ireland is the first country worldwide to have implemented a single ICT system to support the management of risk across its public service, including the healthcare sector.

The NTMA is designated as the State Claims Agency (SCA) when managing claims against the State and State authorities and carrying out related risk management functions in order to reduce the costs of future litigation against the State.

The SCA’s remit covers personal injury and third-party property damage risks and claims relating to 129 State authorities including the State itself, Government Ministers, the Attorney General, the Health Service Executive, the voluntary healthcare sector, An Garda Síochána, the Irish Prison Service, the Defence Forces and community and comprehensive schools. It also manages third-party costs arising from certain Tribunals of Inquiry and claims for legal costs by parties who have successfully sued the State in respect of personal injury and other non-personal injury related actions.

Claims and Litigation Management

The SCA’s claims management objective is, while acting in the best interest of taxpayers in matters of personal injury and property damage litigation, to act fairly and ethically in its dealings with people who have suffered injuries and/or damage and who take legal actions against the State or State bodies, and the families of these people. In cases where the SCA investigation concludes that the relevant State authority bears some or all liability, it seeks to settle claims expeditiously and on fair and reasonable terms. If it considers that the State is not liable, the SCA’s policy is to apply all necessary resources to defend the claims.

Active Claims End-2015

The SCA managed 8,275 active claims with an estimated outstanding liability of €1.79bn at end 2015.

Active Claims at End-2015

Maternity services claims comprised €0.9bn of the estimated outstanding liability at end-2015. The high estimated liability associated with maternity services claims relates to the high costs of settling catastrophic braindamaged infant cases.

The estimated outstanding liability of €1.79bn does not take account of the Court of Appeal Decision in Gill Russell v HSE, which is currently on appeal to the Supreme Court. The Court of Appeal held that the Real Rate of Return (RRR) in respect of the calculation of future care special damages should be 1%. It also held that the RRR in respect of all pecuniary losses should be 1.5%. The effect of the decision, if applied to the estimated outstanding liability, would be to increase it by c.€300m.

The SCA received 2,943 claims and resolved 1,863 claims in 2015. The volume of new claims received has been driven by mass action claims and, principally, the high number of in-cell-sanitation claims taken by current and former prisoners against the Irish Prison Service.

An independent actuarial assessment projected that €271.7m would be required in 2015 to cover the cost of resolving and managing ongoing active claims. The net cost was €221.7m – a saving of €50m or 18%.

Resolving Clinical Claims

The SCA resolves the majority of claims by negotiating a settlement, either directly with the plaintiff’s legal advisors or through a process of mediation: 97% of clinical negligence cases handled by the SCA are settled without the necessity for a court hearing.

How Clinical Claims are Resolved

The Legal Services Regulation Act 2015 includes three significant provisions which should further assist in the management of clinical negligence cases and reduce the number of cases that go to trial. These are:

• Provision for Ministerial power to make regulations for Pre-Action Protocols to facilitate timely communication between plaintiff and defendant and early identification of issues in dispute and to encourage early settlement.
• An apology by a medical practitioner shall not constitute an admission of liability.
• The Statute of Limitations period for the making of a clinical claim is increased from two to three years from the date of incident giving rise to the claim or the date of knowledge (if later).

Cost of Claims Resolved

The SCA has taken a number of measures to reduce legal costs associated with claims. These include:

• The putting in place of SCA barrister and solicitor panels to provide for competitive tendering of legal services to the SCA.
• Close examination of costs of plaintiffs’ legal representatives and seeking the maximum possible reduction through negotiation or if necessary by determination of a Taxing Master.
• Seeking of third party/co-defendant contributions.

These measures have resulted in a significant reduction in the average costs associated with clinical claims in 2014 and 2015 compared with the previous three years. The settlement of a certain number of infant catastrophic injury cases by means of Periodic Payment Orders has also been a significant factor in the fall in average costs of clinical claims in cash terms over this period – of course, in these cases, there will be ongoing payments to the plaintiffs in future years.

The average cost of general claims has increased over the five year period since 2011, notwithstanding the measures taken by the SCA to reduce legal costs. This is due to the increase in the greater number of more serious claims being settled, having regard to the aging effect of the portfolio, particularly HSE-related claims.

Cost of Claims Resolved 2011 to 2015

Figures may not total due to rounding.

Mass Actions

The SCA is managing a number of different mass actions against the State. Each mass action is managed by reference to a specific legal strategy to ensure that the State’s liabilities are contained at the lowest achievable level.

Active Mass Action Claims

Legal Costs Unit

In 2012 the Government decided to establish a Legal Costs Unit (LCU) within the SCA to deal with third-party costs arising from certain Tribunals of Inquiry (the Mahon, Moriarty, Morris and Smithwick Tribunals). In 2015 the Government extended the LCU responsibilities to management of all legal costs claims against the State.

The level of legal costs paid to plaintiffs’ legal representatives is carefully examined and, wherever possible and by means of negotiations, the SCA seeks to achieve the maximum possible reduction in legal costs. If the SCA cannot successfully agree the level of legal costs to be paid to plaintiffs’ legal representatives, the matter is determined by a Taxing Master.

In 2015 the SCA settled 112 bills of cost received from third parties for €18.1m – a saving of 42% on the €31.3m claimed. All of these claims were agreed without the necessity for taxation, thus avoiding delays in settlements and stamp duty charges at 8% of the taxed award.

Risk Management

The SCA’ risk management objective is to implement targeted personal injury and property damage risk work programmes to mitigate litigation risk in State authorities and healthcare enterprises, in order to reduce the costs of future litigation against the State. The “risk universe” indemnified by the State and managed by the SCA is extensive. For example, it includes over 200,000 State employees and all public healthcare service users (public healthcare has approximately 7 million contacts with members of the public per annum). It also includes public services that, by their nature, constitute higher risk activities such as the provision of clinical care in hospitals, Defence Forces personnel on operations overseas, members of An Garda Síochána on operational duty, customs inspections, emergency response services and custody of prisoners.

The SCA’s clinical risk management programme focuses on collaboration with risk managers and other personnel in healthcare enterprises to support patient safety. The enterprise risk management programme focuses on providing advice and support to State authorities and healthcare enterprises within its remit in relation to risk management structures, maintenance of buildings, fire safety, health and safety and environmental management.

Legal Costs Claims Settled 2015

Figures may not total due to rounding

Clinical Risk

Maternity services are a priority area within the clinical risk management programme. During 2015 the SCA published a five year review of clinical incidents and claims in maternity and gynaecology services. It also carried out a series of detailed hospital site visits in order to identify national and site specific risks. It will publish a report in 2016 detailing its analysis of these site visits. The report will include recommendations to ensure optimal care.

Other significant clinical risk management activities in 2015 included:

• Establishment of a clinical risk forum with the national directorate of the HSE, and regular meetings with other key stakeholders including HIQA, post graduate training bodies, senior executive management and front line hospital staff.
• Formulation and delivery of clinical risk courses at undergraduate level for the Royal College of Physicians of Ireland and Trinity College Medical School.
• Analysis of closed medico-legal claims was performed across multiple topics: Paediatrics, Mental Health, Emergency Medicine, Slips/Trips/Falls, Maternity and Gynaecology services. The results of this analysis were made available, on a “lessons learnt” basis, to relevant stakeholders to enable appropriate learnings to be applied to prevent, in so far as is possible, recurrence of similar events giving rise to future claims.

Enterprise Risk

Each year the SCA devises a risk management work programme to assist State authorities with the development and implementation of risk management policies and procedures. Significant enterprise risk management activities in 2015 included:

• Design of an eight day certificate course for the Irish Prison Service to provide managers and health and safety risk management personnel with best practice risk management tools to enable them to carry out their duties optimally.
• Carrying out a review on behalf of the Office of Public Works of the completion of recommendations arising out of a number of reports in respect of visitor safety on Skellig Michael.
• Publication of new guidelines, entitled Managing Visitor Safety in the Historic Built Environment – Principles & Practice, on behalf of the Visitor Safety in the Countryside Group (of which the SCA is a member). The guidelines set out the guiding health and safety management principles for managers of historic sites.
• Working with the Defence Forces to update procedures and processes to ensure that the work of the Defence Forces is carried out in accordance with the Safety, Health and Welfare at Work Act 2005 and associated regulations.
• Launch of a number of guidance documents for State authorities in respect of their activities carried out under a State indemnity.