Colleagues:

 

This message will be of interest to those who follow developments in tort law as it relates to health care.

 

First, following a long study period, Ireland has introduced legislation—the Civil Liability (Amendment) Bill 2017—which, if passed, will provide for periodic payment orders (PPOs) in catastrophic personal injury cases. The proposed scheme is remarkably detailed and deserves study by those who are interested in attempts to address the problems with the common-law requirement that damages be awarded only in the form of lump-sum payments. Settling parties have, of course, long had options in this regard—so-called “structured settlements”—but legislative intervention to let courts achieve similar results has been slow and spotty. The Irish scheme would change that. Among other things, it deals with jurisdiction and discretion to order PPOs (or to incorporate agreed-upon terms into an order); factors to consider when deciding whether to make a PPO; “stepped payments” that can be triggered by various events, such as the plaintiff-patient reaching a certain age or entering an education stream; security and continuity of payments; indexation; assignment of a right to a PPO; consequential amendments to other acts; and even a privative clause of sorts (right of appeal on a question of law for certain sections). The website below is a good starting point for understanding this development and has links to: (i) the bill as initiated; (ii) an explanatory memorandum; and (iii) a regulatory impact analysis.

 

http://www.justice.ie/en/JELR/Pages/Civil_Liability_(Amendment)_Bill_2017

 

The second-stage speech (8 February 2017) by the Minister for Justice and Equality can be found here:

 

http://bit.ly/2okWdAQ

 

Second, Cabinet has approved an amendment to this bill that would facilitate a voluntary disclosure scheme in the health care context, designed to give legal protection for information or apologies given by a “health services provider” at an “open disclosure meeting” in respect of a “patient safety incident” (the quoted expressions are all heavily defined terms). The concept is similar to that found in many Australian and US states (though the scope of protection varies considerably) and Canadian “apology acts” (which, for the most part, apply to civil actions generally and not just to liability in the health care context). See, e.g., Sorry Works!, a non-profit organization that promotes the open-disclosure concept regardless of whether apology/disclosure legislation exists, as well as an upcoming issue of the Oñati Socio-Legal Series that will be dealing with this topic in some depth.

 

This proposed amendment is very recent and can be found here:

 

https://www.oireachtas.ie/documents/bills28/bills/2017/117/b0117s-scn.pdf

 

Yours truly,

 

John Kleefeld