The Working Group on Medical Negligence and Periodic Payments, which includes Ciaran O'Rorke, head of the Hayes solicitors' Healthcare team, published the first part of its report earlier this week.
Following an intensive period of deliberation and consultation with interested parties, the Group concluded that the current system of awarding damages for future pecuniary losses - the lump sum award - is inadequate and inappropriate.
The current (lump sum) system
Where a plaintiff has been catastrophically injured, he or she is likely to require significant ongoing nursing care and assistance, medical treatment and medication, and aids and appliances into the future. The current lump sum system requires legal representatives for both the plaintiff and the defendant to commission reports on the likely annual cost of providing this support. Both sides then commission reports, medical and statistical, estimating the plaintiff's likely life expectancy i.e. years of life from the date of the injury. These reports are then provided to financial experts, including actuaries and investment consultants, who estimate the capitalised lump sum cost of providing the patient with the necessary care for the rest of their estimated life expectancy.
Estimating future life expectancy is a very inexact science. As a result, a plaintiff may outlive the estimated life expectancy, giving rise to the risk that the money will run out. On the other hand, a plaintiff may not live as long as the estimated life expectancy, and the money designed to care for them into the future will pass to his or her heirs.
The recommended (periodic payment) system
The Group's key recommendations include:
Legislation should be enacted to give the courts the power to make periodic payment orders (PPOs) to compensate catastrophically injured patients who require long term permanent care i.e. future treatment, future care and the future provision of medical and assistive aids, where to do so would be in the plaintiff's best interests. The PPO could apply to the whole award, or part of the award, having regard to the nature of the injuries sustained and the circumstances of the plaintiff. The courts could make a PPO on a consensual or non consensual basis i.e. whether or not the parties agreed...