Analysis: efforts to address the shortcomings of medical negligence litigation are slow, but the introduction of periodic payment orders is an important change

In the past number of months, medical negligence claims have received considerable attention and have come under scrutiny by both the media and public. The realities and challenges of coping with harm caused by medical negligence, and the adversarial nature of litigation as a means of seeking redress, are to the fore of public consciousness.

Although several measures aimed to mitigate deficiencies in the current system have been mooted by the government over the past number of years, change has been slow to materialise. One of these changes is the recent commencement of legislation which will enable the payment of periodic payment orders (PPOs) in cases of catastrophic injury.

Redress for medical negligence through the law of tort is provided in the way of monetary compensation, frequently referred to as "damages". Damages are the principal (and sometimes only) remedy which litigation can provide. This is because the tort system operates on the principle of restitutio in integrum (returning to the state as it was before), which aims to return the plaintiff to the position they were in prior to the occurrence of the negligent event.

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From RTÉ Radio One's News At One, Orla O'Donnell reports on how a €5m award in the case of a Sligo schoolboy injured at birth was agreed through mediation rather than through a court case

In the vast majority of cases, damages for claims of medical negligence, whether awarded by the court or agreed to in a negotiated settlement, take the form of a lump sum. However, such an approach gives rise to two issues: first, monetary compensation cannot always return the plaintiff to their previous state in cases of medical negligence; and secondly, payment of a lump sum may result in over or under compensation.

Although the principle of restitutio in integrum applies to a point, it is problematic in a medical negligence context. This is primarily because whilst restitutio in integrum can be achieved in cases where a financial loss has been caused, it is more difficult in cases involving a physical or psychological injury where full restoration cannot sometimes be achieved. How, for example, can money ever adequately compensate for the loss of a parent, a child, an eye, or the loss of time and opportunities?

The shortcomings of money as a mode of compensation aside, the payment of a lump sum has led to another set of tangible issues. One of the more practical challenges of medical negligence claims, particularly in cases of catastrophic injury, is quantifying the amount of damages required to properly recompense the plaintiff. This is because damages are assessed at a given point in time and a lump sum is awarded, which is intended to compensate for all past and future losses. However, the one certainty with a lump sum is that the award will either be too high or too low due to the difficulties in quantifying the claim, and determining complex issues such as future care needs and the life expectancy of the injured party, however carefully calculated.

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From RTÉ Radio One's Morning Ireland, Dr Deirdre Madden, law lecturer at UCC, on why medical negligence cases take so long

Accordingly, the lump sum approach allows for under compensation and over compensation. There is also no recourse for a plaintiff who, for example, exceeds their life expectancy and is subsequently faced without the means to support the provision of care for themselves. Additionally, technological and medical advances may mean that equipment and assistive technology - which haven’t been budgeted for - may become available in the years following the award of a lump sum.

In contrast to the traditional lump sum award, periodic payment orders (PPOs) provide for phased payments, designed to meet the needs of the plaintiff over the course of their lifetime. Such an approach provides financial security to those who require lifelong care.

In recognition of the fact that a lump sum award may result in unfairness, the High Court Working Group on Medical Negligence and Periodic Payments recommended the introduction of PPOs in their 2010 report. Eight years after these recommendations, legislation facilitating PPOs is now in force. The commencement of this legislation enables the Court (or in some instances, the parties) to agree to a PPO instead of a lump sum award.

This change should insure that plaintiffs receive a just amount of compensation to meet their needs throughout their lifetime

Key points:

(i) Discretion whether or not to award a PPO will lie with the court, who on looking at the best interests of the plaintiff, their injuries and needs, and the views of the parties involve, will decide whether or not to make a periodic payment order.

(ii) The court may also make provision for ‘stepped’ PPO’s, whereby payments are increased or decreased when certain milestones are reached e.g. plaintiff starts school, moving out of the family home, anticipated changes in care needs etc.

(iii) PPOs are subject to annual indexation.

(iv) The court must be satisfied that the continuity of payment is "reasonably secure". In instances where the court is not satisfied, a PPO will not be made

The introduction of PPOs is a long-awaited and welcome development which will hopefully ameliorate some of the outlined issues with the current medical negligence dynamic. Most importantly, this change should insure that plaintiffs receive a just amount of compensation to meet their needs throughout their lifetime, and will put an end to the uncertainty that those with catastrophic injuries are often faced with.


The views expressed here are those of the author and do not represent or reflect the views of RTÉ