Clinical Negligence

Offer to Settle

Where an offer to settle is made, before the bringing of a clinical negligence action, in respect of a claim relating to a catastrophic injury

• the offer to settle shall specify the proportion of the amount of the offer to settle that is attributable to—
  • the future medical treatment of the plaintiff,
  • the future care of the plaintiff,
  • the provision of assistive technology or other aids and appliances associated with the medical treatment and care of the plaintiff, and
  • the future loss of earnings of the plaintiff, and
• a copy of the offer to settle shall be lodged in court by, or on behalf of, the party by which it was made.

The terms of an offer to settle shall not be communicated to the judge in the trial of a clinical negligence action until after he or she has delivered judgment in the action.

The court shall, when considering the making of an order as to the payment of the costs in a clinical negligence action, have regard to—

• the terms of an offer to settle, and
• the reasonableness of the conduct of the party by whom the offer was made in making the offer.

Costs

Where a court has made a periodic payments order in a clinical negligence action, the court shall, when considering the making of an order as to the payment of the costs in the action, have regard to the terms of any offer to settle, other than those terms which relate to the matters referred to above and the reasonableness of the conduct of the parties to the action concerned in making any offers to settle.

In determining liability for the part of the costs of a clinical negligence action relating to the matters referred to the court shall have regard to—above

• any offers not expressed to be without prejudice or in terms having like effect, and
• any offers made without prejudice save as to the issue of costs which were made by or on behalf of a party to the action after the commencement of the trial of the action, to effect a settlement of that action.

This  is in addition to and not in substitution for any rule of court providing for the payment into court of a sum of money in satisfaction of a cause of action or the making of an offer of tender of payment to the other party or parties to an action.

Clinical Negligence Actions (uncommenced)

‘Clinical negligence’ means anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death.

A clinical negligence action’ means an action for the recovery of damages brought—

• by or on behalf of a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence, and
• against the health service provider alleged to have committed the act or omission giving rise to liability or any other person alleged to be liable in respect of that act or omission;

Health Service

‘Health service’ means

• the carrying out of a clinical investigation, diagnosis, procedure, treatment or research,
• the provision of clinical advice or information, or
• the provision of clinical care;

A ‘health service provider’ means a person whose name is on

• the register of medical practitioners,
• a register maintained by the Dental Council,
• a register maintained by the Optical Registration Board,
• a register set up under  the Pharmacy Act,
• a register maintained under the Nurses and Midwives Act , or
• a register maintained by any health and social care profession which has been designated for the purposes of the Health and Social Care Professionals Act  and which the Minister has prescribed by regulations;

Pre-action protocol (uncommenced)

There shall be a pre-action protocol relating to clinical negligence actions. The pre-action protocol shall include requirements that must be complied with by the parties to clinical negligence actions before such actions are brought. The Minister shall by regulations make provision specifying the terms of the pre-action protocol.

The Minister shall, in making regulations, have regard to the desirability of—

• encouraging the early resolution of enquiries or allegations relating to possible clinical negligence,
• promoting timely communication between persons who are enquiring into or making allegations about possible clinical negligence and those whom they consider may be liable in respect of it,
• reducing the number of cases in which clinical negligence actions are brought,
• facilitating the early identification of the issues in dispute in clinical negligence actions, and
• encouraging the early settlement of clinical negligence actions.

Terms of Protocol (uncommenced)

The terms of the pre-action protocol specified by regulations under subsection (3) shall in particular include provision relating to—

• the disclosure of medical and other records relating to persons enquiring into or alleging possible clinical negligence (including charges for disclosure),
• the giving of notifications of enquiries into, and allegations of, possible clinical negligence, the acknowledgement of notifications of enquiries and the giving of responses to notifications of allegations,
• the specification of the time at or within which records shall be disclosed and notifications given and acknowledged or responded to,
• the form of, and particulars to be included with, requests for disclosure or notifications of enquiries or allegations and acknowledgements of and responses to such notifications,
• the disclosure of material relevant to allegations and responses, and
• agreements to submit issues for resolution otherwise than by a court.

Powers of court (uncommenced)

The court in which a clinical negligence action is brought, on hearing the action, may do any of the following:

• direct that the action shall not proceed any further until steps which are required by the pre-action protocol to have been taken by any of the parties have been taken;
• order that a party who has not complied with a requirement of the pre-action protocol pay the costs, or part of the costs, of the other party or parties (including, where appropriate, on an indemnity basis);
• if an award of damages is made in favour of the plaintiff but the plaintiff either has not complied with a requirement of the pre-action protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or greater than that awarded, order that the plaintiff shall be deprived of interest on all or part of the award or that all or part of the award shall carry interest at a lower rate than it otherwise would;
• if an award of damages is made against a defendant but the defendant either has not complied with a requirement of the pre-action protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or less than that awarded, order that the defendant pay interest on all or part of the award at a rate higher by no more than 10 percentage points than the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840 .

Apology not admission or invalidate insurance (uncommenced)

An apology made in connection with an allegation of clinical negligence—

• shall not constitute an express or implied admission of fault or liability, and
•  shall not, despite any provision to the contrary in any contract of insurance and despite any other enactment, invalidate or otherwise affect any insurance coverage that is, or but for the apology would be, available in respect of the matter alleged.

Despite any other enactment, evidence of such an apology is not admissible as evidence of fault or liability of any person in any proceedings in a clinical negligence action.

The above provision does not apply to a claim that accrues before the coming into operation of the legislation, which as of September 2018, had not yet been commenced.