Tuesday 20 August 2019

Outdated lump sum system no comfort to parents of children brain-damaged at birth

When a child is brain-damaged at birth and a medical malpractice case is taken, computing the correct sum payable in damages is an impossible calculation
When a child is brain-damaged at birth and a medical malpractice case is taken, computing the correct sum payable in damages is an impossible calculation

Susie Elliot

Some years ago in the Four Courts, a loving and devoted mother of a child with cerebral palsy from birth told me that if God had any mercy at all, he would take her daughter first.

"That way, I will always have cared for her for her whole life, like nobody else ever can," she said, marking one of the most moving moments of my career.

These were the honest words of motherly love at its most beautiful and most painful, and they reflect the sentiments of many parents I have met when representing victims of medical malpractice. As parents, all we want is a happy, safe and fulfilled life for our children.

It is no different for parents of children with catastrophic injuries such as 10-year-old Gill Russell. Gill was brain-damaged at birth through medical negligence. His mother, Karen, secured a significant victory for her son and for families across the State, when the appeal against her son's €15.4m settlement was upheld.

This ruling addresses one of the many deficiencies of the prevailing outdated and unworkable lump sum award system. Billions wouldn't buy back what has been lost in cases like this - nothing ever can.

It is never about the money. It is always about securing a solid future for people like Gill and their families whose lives are forever changed beyond any measure when catastrophic events occur. A law that adds uncertainty of future financial security to the mix is, to my mind, cruel, unjust and wholly unnecessary.

When a child is brain-damaged at birth and a medical malpractice case is taken, computing the correct sum payable in damages is an impossible calculation.

The law as it stands provides for lump sum payments - a once-off sum to cover all costs associated with the care, accommodation and rehabilitation of that child for life.

The big debate then arises: for how long will the child live, and what must he do with his funds to ensure he has exactly enough for his whole life, no less, no more?

At present, when funds are awarded, they are done so on the basis of an actuarial calculation that allows for the said lump sum to be invested, thereby generating a return. The higher risk the portfolio, the greater the yield (and the greater the potential loss).

Conversely, the lower the risk, the lower the return. Investment strategies are taken into account by the actuarial calculations to allow for the return on an investment which, if ignored, would serve to over-compensate plaintiffs.

Catastrophically-injured plaintiffs rely solely on the award of damages for all care and activities of daily living. They cannot afford to hazard investing their funds in high-risk portfolios - they don't have a fall-back if the investment implodes.

In the Russell case, the Court of Appeal clarified the question of what investment a plaintiff is expected to make with his award. Plaintiffs are no longer required by the law to risk their future financial security in the investment market.

The rate of return on investments has been reduced, thereby relieving plaintiffs of the obligation to take inappropriate risks with their funds.

The question of how long an injured person is expected to live remains forever unanswerable as expert physicians are asked to calculate life expectancy with regard to any number of factors including mobility, continence, lung function, intellectual ability, swallow, head control and so forth.

The healthier the individual, the greater the predicted life expectancy. Life expectancy must be calculated by the courts at a specific point in time; that is, invariably, after many years of sparse, if any, rehabilitation, this fortified by gaping holes in services available in the public system.

If frequent, reliable and appropriate therapies were in place prior to the assessment of life expectancy, it would be improved exponentially. How can a 10-year-old child with little or no physiotherapy be fairly assessed when he hasn't been given the opportunity to reach his full potential?

In the prevailing lump sum approach, neither the injured party nor the taxpayer wins.

If he is assessed now, before private funds allow him to fully rehabilitate, an unreliably low life expectancy will result. When funds do become available, rehabilitation takes place, mobility improves and the plaintiff may well outlive the life expectancy estimated by the court on the basis of pre-rehabilitation medical evidence.

Having outlived his prognosis, there is every chance he will run out of funds. With only one "bite of the cherry", that plaintiff is left desolate. The flip side is that the plaintiff's condition may take him sooner than was anticipated, in which case the taxpayer unjustly loses out, the family having inherited the unexpended funds.

As Ms Justice Mary Irvine has observed, "lump sum payments inevitably mean injustice to one side as they must be calculated on the anticipated life expectancy of a person".

Unless and until the State appeals the decision, the Russell case has certainly upgraded the antiquated poor infrastructure of the lump sum system.

However, as Judge Irvine states, the "frailty and injustice" of the "grossly-outdated" lump sum system of compensation remains in place, regardless of whatever real rate of return, or discount, is used in its calculation".

Time and again, judges urge the Oireachtas to end that system.

I have acted for a number of injured plaintiffs who have, by agreement, successfully "by-passed" the problematic lump sum award system by agreeing interim settlements known as Periodic Payment Orders, or PPOs.

PPOs allow for sufficient funds to cover a plaintiff's costs for life - no more, no less.

This is what we need to see in our legislation - a system of certainty, so that parents like those I describe have the reassurance they desperately need in relation to their children's future security, while taxpayers foot the correct and just bill in compensating the plaintiff - no more and no less than the correct amount.

It is as simple as that.

Susie Elliott is a medical litigation solicitor with Ernest J Cantillon Solicitors in Cork

Irish Independent

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