Global healthcare update

Kennedys' medical malpractice specialists from Australia, Hong Kong, Spain, France and Ireland discuss the key issues and developments currently impacting on the claims they are handling, and those that they envisage for 2020 in their jurisdictions.

It is interesting to see the differing issues facing medical malpractice claims globally and what lessons we can learn internationally when managing our claims in England.

Australia | France | Hong Kong |Spain | Ireland

Australia (New South Wales)

Key issues and developments currently impacting on claims

Post-tort reform

In relation to medical malpractice claims in New South Wales, we have enjoyed a period of relative stability following the reforms introduced in the early 2000s to address the personal injuries damages crisis. Low value nuisance claims still arise - largely brought in conjunction with law firms offering “no win no fee” terms - but far from the extent of previous levels.

External litigation funding for individual plaintiffs still does not form part of the New South Wales claims landscape. As part of the reforms, there is a need for the service of supportive independent expert evidence at the time of commencing medical and certain other professional negligence cases. While the threshold for such evidence is not high, it too goes some way to identify nuisance claims from the outset.
While there is perhaps more of a propensity for claims in New South Wales to run to a hearing than in other Australian States, mandatory (i.e. court ordered) mediations and/or informal settlement conferences (ISCs) amongst parties, remain an important factor in the settlement of many claims. Additionally, discovery/disclosure is only ordered in personal injury matters in exceptional matters.
The courts remain focused upon the swift resolution of litigated claims, either through settlement - hence the emphasis on mediation and ISCs - or hearing. For example, it is possible for a District Court claim to be concluded to judgment within 12 months.

The Online Court Registry

Consistent with its focus upon the swift resolution of litigated claims, an Online Court Registry has recently been introduced in four jurisdictions in New South Wales, including the Supreme and District Courts. Under this system, routine interlocutory and procedural matters are managed online through brief written submissions. It also permits access to the registrar.
It is fully transparent with all parties receiving electronic copies and copies also being maintained on the online court file.
Each jurisdiction has its own practice notes and timetables. In our experience, while there remains the usual uncertainties with any litigation, it has cut down on procedural costs, as for example, not all directions hearings require lengthy court attendances. It has also caused the parties to focus earlier on procedural timetables and the orderly progress of claims.

Regulatory complaints

The very high level of regulatory complaints and the time taken to resolve them remain an ongoing issue in New South Wales. Complaints may be made by anyone - not just those immediately affected.
Additionally, the various boards and commissions are not limited to the terms of the complaint and can look at any issue. While it is acknowledged that the various regulatory bodies have an important public safety function to perform, the lack of proper triaging of such complaints and resourcing remains an issue.

Class actions

The rise of class actions have long been a focus in New South Wales, particularly in commercial claims concerning pure economic loss. In recent times, however, medical negligence claims which would previously have been considered the subject of discrete individual actions, have become the subject of class actions.

Royal Commissions

There are currently two ongoing Royal Commissions which impact upon medical services providers to date:

The Royal Commission into Aged Care Quality and Safety
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability.

There is a concentration in both Royal Commissions upon questions surrounding safety and good care, and finding a meaningful and sustainable solution particularly in the context of an aging population. The tone and level of media attention is markedly different from the recent Banking Royal Commission, which largely concentrated on financial and commercial matters. Nevertheless, claims have and will invariably arise from both of these Royal Commissions.

Key issues and developments envisaged for 2020 and beyond

It is too early to predict the impact, if any, that the recent fire and other climatic events may have on the Australian claims landscape or the wider economy. The other key issues likely to impact upon the New South Wales claims landscape include:

The increased reliance on technology in the provision of health services and the need for regulation and legislation to keep pace.
The growth of electronic record keeping and schemes such as My Health Record and the impact those may have on privacy and security.
The growth of social media and claims surrounding reputational damage and defamation.
Whether the loss of the ability to recover legal costs in relation to certain statutory lines will result in an increase in other, including medical negligence, claims.
The growth of concussion claims in all levels of sport - from junior to senior, across all grades and various disciplines which may not have been traditionally classified as contact sports - and, indeed, concussion claims outside of sport.

As noted above, class actions and the Royal Commissions, are also likely to be key issues in the future from a medical negligence perspective. The volume of regulatory complaints have shown no signs of abating.

However, overall, the period of stability is likely to continue in New South Wales.

Author: Raylee Hartwell

France

Key issues and developments currently impacting on claims

2019 was marked by an increasing number of claims against doctors and healthcare institutions, as well as by a more stringent legal framework. The latest report on civil liability for healthcare institutions (published by the insurer, Sham (part of the Relyens Group) on 8 October 2019) highlights that France’s healthcare market is currently under significant pressure, with increasingly demanding users.

An increasing number of claims

The report by Sham notes that 16,415 medical malpractice claims were brought in 2018, i.e. an increase of 3.9% between 2017 and 2018. The frequency index, which measures this trend, rose to a record level of 251 points in June 2019 compared with 244 points in June 2018.
Medical malpractice claims represent the bulk of the cost of institutional liability claims.

Patient consent

The inadequacy (or absence of) information provided to the patient was a key issue that came before Montpellier Court of Appeal in 2019. In that particular case (CA Montpellier, 20 October 2019) the court held that an unplanned change to the surgical technique used whilst the patient is already in the operating room, does not comply (except in emergencies) with the mandatory duty of obtaining the patient's informed consent.

A constant evolution of amicable recourse

French law has introduced several administrative commissions to provide faster and better compensation for claimants. The Conciliation and Compensation Commission (ICC) is expressly entrusted with the task of promoting the amicable settlement of disputes relating to medical accidents, hospital-acquired infections, iatrogenic conditions, and other disputes between healthcare institutions and users. It has two main missions: conciliation and amicable settlement of disputes. The ICC issues opinions in which it indicates whether a third party is liable for the claimant’s damage.
In 2018, there were 2,607 claims filed with the ICC, a figure that remains high even if it is stable compared to previous years, confirming the appeal of the ICC system for those bringing a medical malpractice claim.
As for the opinions issued by the ICC, two out of ten, i.e. 19.9% (compared with 19.1% in 2017), led to a finding of liability (in full or in part) and therefore to payment of compensation.
Other commissions, such as the Compensation Commission for the Victims of Crimes (CIVI), can award compensation to victims of offences. These commissions are not bound by the decision of the court since they respond to an autonomous regime and rules. In a case where complications occurred during childbirth, the parents of the injured child obtained compensation before the administrative judge. They then filed a complaint before the CIVI, which rejected their complaint on the grounds they had already been compensated. However, the French Supreme Court recently confirmed the CIVI is independent from administrative courts and it should not reject a complaint based on the previous compensation awarded by the administrative court.

The increasing severity of French courts and increase in damages awarded

French courts seem to be taking an increasingly harsh approach towards healthcare institutions and doctors, with a significant proportion of decisions going against them.
Damages awarded to claimants are also increasing. Courts tend to indemnify moral damage (for example loss of affection, where there has been a death, or loss of confidence in those treating the claimant), even in the absence of any physical damage resulting from fault on the part of a doctor.

Key issues and developments envisaged for 2020

Continued challenges for the medical profession

2020 promises to be another challenging year for healthcare institutions, doctors, and laboratories as we anticipate the current approach taken by the courts will continue.

Legislation

In November 2019, the French National Assembly adopted a change in the law regarding the compensation mechanism for those suffering birth defects and cognitive impairment as a result of Depakine, a medication prescribed for epilepsy and bipolar disorders. The change in law establishes a single body to examine claims (as opposed to two previously), in order to speed up the process of compensation.

E-health and diagnostic tools

2020 is likely to bring further development in the use of ‘e-health’, which can be defined as healthcare services provided electronically via the internet. Although the development of e-health is at an early stage in France, there has been an acceleration in its use since 2018 and the emergence of new challenges.
This is a market that is expanding very rapidly and is likely to bring the emergence of new risks in relation to professional liability of doctors and health care institutions. Since 1 January 2019, doctors have been authorised to collect the opinions of third parties via ‘tele-expertise’, (i.e. doctors are now permitted to consult other professionals, remotely, on a secured platform to assist them in providing their diagnosis).
Similarly the development of diagnostic tools (for example, the application of artificial intelligence in medical imagery screening) and medical software to assist doctors in reaching diagnostic hypotheses, provide new possibilities for the treatment of patients. However, such technological developments are not without risk, raising questions about the obligations of health professionals and the scope of their liability when using these new tools, as well as on the management and protection of personal data.

Author: Aurélia Cadain

Hong Kong

Key issues and developments currently impacting on claims

Civil procedure

As a common law jurisdiction, civil litigation in Hong Kong is based on the rules and procedures that apply in England and Wales. Since Hong Kong’s Civil Justice Reforms in 2009, which were inspired by the Woolf Reforms, Hong Kong courts now more actively enforce procedural deadlines and sanction parties who delay repeatedly or without good reason.

The judiciary has issued a Practice Direction setting out a pre-action protocol which parties should comply with before commencing litigation. This includes:

The plaintiff issuing a pre-action letter setting out important details of the claim.
Mutual disclosure of basic documents on liability and quantum.
Constructive correspondence and/or negotiations on both liability and quantum.

Failure to comply with the pre-action protocol leaves the defaulting party susceptible to costs sanctions or a stay of proceedings until the breach is remedied. Non-compliance on the part of the plaintiffs is common and can lead to delays, adding to the length of claims.

For litigated medical negligence claims, the plaintiff must disclose an expert liability report to support their claim. As in England and Wales, both parties’ experts are expected to hold a without prejudice discussion and produce a joint statement setting out any issues that are agreed and those where there is disagreement (and the reasons for disagreement) to assist the courts in reaching a decision on the case.

Mediation

The parties are expected to attempt mediation (a form of alternative dispute resolution) before the case proceeds to trial, unless there are very good reasons not to do so. In the absence of such reasons, failure to attempt mediation will lead to adverse costs implications.
The opportunity to meet the plaintiff face-to-face and discuss their medical management on a without prejudice basis at the mediation, can provide the plaintiff with closure and in some circumstances can encourage settlement in otherwise difficult claims.

Duration of claims

The timeframe for resolution of a civil claim, often depends on the complexity and size of the claim.

Smaller value or more straightforward claims are usually resolved within one to two years, following the issuing of court proceedings.
More complicated cases can take up to four years or so to reach a conclusion, often due to the voluminous liability and quantum expert evidence in such cases, combined with multiple stages of disclosure and exchange/service of witness statements.
For matters that proceed to trial, a further two years is often anticipated.

Claim value

Damages in Hong Kong are based on common law benchmarks with little guidance from statute. No new heads of loss have been introduced in recent years, however there is a general and steady increase in awards for general damages (i.e. for pain, suffering and loss of amenity) and loss of society (compensation for the love and care provided by the plaintiff as a family member who, through injury, cannot now provide such love and care), as well as future care costs.
The increase in awards for future care costs is partly driven by the high cost of accommodation, and medical and nursing care in Hong Kong. This is compounded by the reduced discount rate for future losses under Chan Pak Ting v Chan Chi Kuen and Another [2013], which was handled by our team on behalf of the Hospital Authority in Hong Kong. The Chan Pak Ting judgment gave rise to three different discount rates based on the length of the future loss (-0.5% for needs up to five years, 1% for needs above five and up to ten years, and 2.5% for needs beyond ten years).
Settlement sums are still paid on a one-off, lump sum basis. In April 2018, a sub-committee of the Law Reform Commission of Hong Kong (a body independent of the government) published a public consultation paper on whether the court should be given the power, by way of legislation, to make periodical payment orders (PPOs) in respect of damages for future pecuniary loss in personal injury and medical negligence cases. The outcome of the consultation (which closed in August 2018) is awaited.

Complaints to disciplinary bodies

There are an increasing number of complaints to disciplinary bodies, such as the Medical Council, Nursing Council, Physiotherapists Board, and Chinese Medicine Council. This is perhaps in part due to greater public awareness of this channel, and an increasing number of complaints arising in connection with aesthetic/cosmetic medicine.

Key issues and developments envisaged for 2020

It is anticipated the number of claims and complaints will continue to grow, due to the larger population and the increasing demands on medical needs.
The size of compensation claims is unlikely to increase substantially, but will continue to grow due to inflation and the rising cost of medical and nursing care.
‘Medical tourism’ is set to continue with residents from Mainland China seeking medical care in Hong Kong. This may also create a further risk of an increase in the number of claims and complaints.
Whilst there is currently no date for publication of the outcome of the Law Reform Commission’s consultation on PPOs, it is hoped that details on the next stages will follow in the year ahead, although it may take longer before there is any update.

Author: Christine Tsang

Spain

Key issues and developments currently impacting on claims

Spain’s current Civil Procedure Rules (enacted in 2001) apply to all civil claims without sector specific regulations.

Absence of pre-action protocols

The absence of pre-action protocols in Spain, means it is common for civil medical malpractice claims to be litigated. Without a framework for early disclosure of medical and other supporting evidence, the vast majority of claims are not resolved prior to the issuing of court proceedings.
The limitation period for medical malpractice claims depends on whether it is a contractual claim (five years) or tort liability (one year). This distinction can be of relevance in relation to private healthcare and whether a claimant decides to pursue a claim against the clinic (contractual relationship) or a specific medical professional involved (generally tort).
Prior to the issuing of court proceedings, letters of claim are often used to inform the defendant party of the existence of a claim and have the effect of resetting the limitation period. For example, in a contractual claim, a letter of claim sent prior to the expiry of the five year limitation period will activate a further five year limitation period. There is no legal obligation to respond to a letter of claim.

Claims against the public health service

When claiming against the public health service, the injured party has to claim through a specific administrative procedure which grants the public authority six months to investigate the claim from the date of receipt before the actual public authority involved issues a decision on liability. In the event of an unfavourable resolution for the affected party, they can pursue their claim through the administrative courts.
Depending on the nature of the alleged clinical negligence, affected parties also have the option of pursuing a criminal case together with a civil claim before the criminal courts.

The conduct of litigation

Whilst there has been a push in recent years to increase the use of alternative dispute resolution (ADR) in Spain, with local colleges of physicians having set up mediation procedures, ADR does not currently play a significant role in medical malpractice claims.
In relation to civil litigation, it is the parties that determine which evidence they want to rely on, with little judicial involvement. Specific proceedings are available prior to litigation so that affected parties can obtain disclosure of documentation such as medical records and insurance policies for the purpose of preparing their claim, but how legal proceedings progress is determined by the evidence that the parties present.
A case management hearing is held prior to trial for the purpose of identifying the issues to be resolved and to determine which evidence will be presented at trial, but it is as the trial itself when any witness evidence is presented for the first time. This can present a significant litigation risk and must be factored into reserving.
Parties to the proceedings will provide evidence from experts appointed by each party, with no provision for jointly appointed experts. This gives rise to varying conclusions on liability and quantum and the quality of expert evidence presented at trial, creating further litigation risk. In some circumstances a judge can appoint an expert to analyse the claim, but it is not common.

Key issues and developments envisaged for 2020

In 2016 a modified scale of damages was introduced for road traffic accidents occurring from 1 January 2016 onwards. This modified scale significantly increased compensation for claimants compared to the previous scheme. This scale of damages is not compulsory for non-motor related cases but generally claimants and the courts apply the scale for guidance purposes.
Since its introduction in 2016, the modified scale has presented challenges in medical malpractice claims as claimants have attempted to apply the new (more favourable) scale to claims relating to alleged incidents occurring prior to 1 January 2016. As the scale is not compulsory for medical malpractice claims, judges have been free to apply either the previous or new scale at their discretion, which has resulted in some uncertainty as to quantum.
Due to limitation periods and as the new scale of damages has now been in place for four years, it is hoped that this uncertainty will diminish significantly in the coming year.

Author: Alfonso De Ramos

Ireland

Key issues and developments currently impacting on claims

Delay

Litigation of clinical negligence claims in the Republic of Ireland remains subject to considerable delay. One of the predominant reasons for this is that there are no clinical negligence pre-action protocols in Ireland. There is, therefore, currently no requirement for pre-action disclosure.
Change is, however, finally on the way. The Legal Services Regulation Act 2015 contains provision for the introduction of pre-action protocols for clinical negligence claims, which will require time specified pre-action disclosure and potential for pre-action letters of claim and letters of response. It is anticipated that the protocols will largely follow the format of the Pre-Action Protocol for Resolution of Clinical Disputes in England and Wales.
Although the legislation has been enacted, Part 15 of the Act (introducing pre-action protocols) has not yet been ‘commenced’ by the Minister for Health, with detailed regulations required to specify the terms of those protocols. Recent parliamentary debates highlight the preparations for commencement of Part 15 are at an advanced stage. Once introduced, the pre-action protocols will, we consider, be the single most positive change to the landscape of clinical negligence claims in Ireland and a hugely welcome step for insurers.

Concerns with periodical payment orders (PPOs)

The Civil Liability (Amendment) Act 2017 (the Act) (passed in November 2017) provided for the introduction of PPOs, with an Order subsequently made in October 2018 commencing the relevant parts of the Act and formally bringing into force PPOs in Ireland.
Despite the intention behind the legislation, serious concerns have been raised by claimant solicitors that the indexation of periodical payments is inappropriately linked to the annual rate of the Irish Harmonised Index of Consumer Prices Index (HICP). It is argued that as wages rise at a greater rate than increases in consumer prices, catastrophically injured claimants ultimately face a significant shortfall in the monies they will receive to cover their care requirements. As a result there has been a marked reluctance by catastrophically injured claimants to utilise PPOs in this jurisdiction.
Whilst there is provision for a review of the suitability of the HICP index within five years, the earliest review being in 2023, there is no remedy for those claimants who have suffered a shortfall to that date.
In the case of JH (a minor and ward of court) (14 November 2019, unreported), High Court Judge Murphy described PPO legislation in its current format to be a ‘dead letter’. Murphy J, accepting the claimant’s expert evidence, refused to approve a PPO for a catastrophically injured child on the basis that in all probability, due to indexation issues, the PPO would not meet the child’s future care needs. The court, instead, exercised its inherent jurisdiction and awarded a three year interim payment to be revisited at that time.
Many commentators are hoping that this case will result in the legislature considering a change in the indexation for PPOs in Ireland.

Level of damages in Ireland

Former High Court President, Mr Justice Kearns, Chair of the Personal Injuries Commission found that the level of personal injuries damages can be on average up to 4.4 times higher than in the UK and stated:

I have reached a point, not only in my legal life but in my life generally, where I am convinced a moment has come in this country where something really has to be done about our compensation culture.

It is hoped that 2020 will see a general trend towards reduced general damages awards in Ireland and the legislature, and the Legal Services Commission are leading the charge in this regard.

The Judicial Council Act 2019 provides for the establishment of a committee formed of seven Judges from all court jurisdictions, to prepare Personal Injuries Guidelines (the Guidelines) as to the level of damages for specific injuries. The Guidelines will also now be updated every three years. The previous equivalent guidelines, the Book of Quantum, was initially released in 2004 and then not updated for 12 years. It is anticipated that the Guidelines will reflect the detail present in the Judicial College Guidelines applied in England and Wales, and that they will have general application to personal injury and clinical negligence claims, where appropriate.
The Law Reform Commission also recently issued a positional paper proposing models for capping general damages in personal injury actions. If this proposal is taken forward by the legislature it may result in wider application to clinical negligence claims and a welcome reduction in general damages awards.
The cap on general damages in Ireland for catastrophically injured claimants has been referred to in a number of key judgments as being €450,000. This was recently increased to €500,000 in the very high profile case of Ruth Morrissey v HSE, Quest Diagnostics and Medlab [2019] in which Kennedys are representing a cervical cytology laboratory. Ruth Morrissey is terminally ill due to alleged missed diagnosis of cervical cancer and Cross J, at first instance, equated a negligently caused terminal diagnosis to the worst of catastrophic injuries and awarded Ms Morrissey the increased maximum damages cap. Kennedys appealed this aspect of the decision (and liability generally) to the Supreme Court and the judgment is expected imminently.

Key issues and developments envisaged for 2020

Developments to address procedural delay, issues arising in relation to the calculation and utilisation of periodical payments, and the level of damages are likely to shape the legal landscape in relation to medical negligence claims.
The Patient Safety (Notifiable Patient Safety Incident) Bill 2019 (the Bill) is currently being debated by the Dáil (Houses of Parliament), and it is anticipated it will be ratified later this year, introducing mandatory open disclosure of certain “notifiable” patient safety incidents.
Open disclosure became of particular importance in the wake of the Cervical Check ‘scandal’ and remains an issue that is at the forefront of media reporting which, sadly, reflects a growing mistrust of health professionals in Ireland. While voluntary open disclosure was introduced on a legislative footing in September 2018, due to political pressure arising from that ‘scandal’, this Bill proposing mandatory disclosure has been put forward.
An important distinction between this proposed legislation and the Duty of Candour legislation in England and Wales is that individual health professionals may find themselves at risk of summary conviction and a Class A fine (up to €5,000) for a failure to comply with the legislation.

Author: Joanne O’Sullivan

Read others items in Healthcare Brief: global edition - February 2020