Option of staged payouts in child-negligence cases
Staged payouts in chiild-negligence cases
Monday February 01 2010
Parents who take court cases on behalf of a child who has suffered catastrophic injury due to medical negligence will be offered a new form of award from the middle of this year.
Instead of a lump-sum court award, they are expected to be also offered the option of staged payments.
Ciaran Breen, director of the State Claims Agency, confirmed it was finalising a blueprint for Periodic Payment Orders (PPOs) which could be introduced in cases such as those brought on behalf of a child who had suffered brain damage due to medical negligence.
Currently, the only option in these cases is a lump-sum award of more than €4m in some instances, but even this may not cover the lifetime needs of the young person. The advantage of periodic payments is that they would be paid yearly and reviewed annually, taking account of inflation and other issues such as deteriorating health.
Mr Breen said he was entering discussions with the Department of Justice and the Central Statistics Office to pave the way for the introduction of PPOs.
The aim is to have it enshrined in law and to put it on a statutory footing, but before this happens it will be introduced in the courts, possibly from the middle of this year.
The staged payments could be agreed where there is consent between the claimant and the plaintiff and the result would be binding for the person's lifetime.
Mr Breen said the system of staged payments would guard against the risks faced by those who invested the lump sum but lost out in the markets. The option of a lump-sum payment would also remain.
The crucial element in the blueprint will be deciding on how the payments are indexed and it is expected to be similar to the earnings-based index Ashe 6115, which is used in Britain. Periodic payments are not a feature of the Irish tort system, but have been in place in England for a number of years.
Judges who decide on lump-sum awards can get conflicting expert evidence on the life expectancy of the child and future care costs.
The parents, who are guardians of the lump-sum award, will have to bear the investment risk that the award will be sufficient to cater for future needs. Lump-sum awards cannot by their nature take account of the changing needs of the patient.
It is expected that about €70m will be paid out across a range of medical-negligence claims this year and most of these will relate to children who have suffered brain damage.
The average payout for a child who has suffered brain damage is about €3.7m and legal costs can add €1m to this figure.
- Eilish O'Regan
Irish Independent
