Posted in New Legal Developments on 09 January 2014

When patients suffer an adverse outcome following receipt of medical treatment, an explanation as to what went wrong, an assurance that lessons will be learnt from any mistakes made and an apology is often what they are seeking most.  Yet in the words of Elton John it appears that “sorry seems to be the hardest word” for Irish Medics.

Ms. Justice Irvine’s recent criticism of the State Claims Agency’s handling of medical negligence cases, in particular the delay in admitting Liability has shone a spotlight on this sensitive area.

The introduction of a statutory Duty of Candour or “open disclosure” would place a positive obligation on medics to disclose details of an adverse event, apologize for the error and, if appropriate, an admission of liability in legal proceedings should be made at the earliest opportunity.

In the UK, the Francis Inquiry, which was established to investigate negligence in Mid Staffordshire Hospital, recommended the introduction of a statutory Duty of Candour on all Registered Health Professionals.

Medical Council guidelines now include an obligation to be candid and the HSE recently published a national policy on open disclosure which states that the patient must be informed in a timely manner of the facts relating to the incident and an apology provided, where appropriate. These are welcome developments.

The legal system needs to catch up as it is clear the “defend and deny” approach has not worked.  In 2008, the Commission on Patient Safety concluded that the current system is not conducive to patient safety. There appears to be an inherent tension that kicks in between the legal process and that of open disclosure.  Defence lawyers instinctively adopt in virtually all cases, a “defend and deny” approach.  This attitude needs to change.

Research has shown that a positive attitude to acknowledging mistakes means that lessons are learnt more quickly and the likelihood of repeating errors is reduced.

The best way to change this “defend and deny” approach is to introduce legislation that would sanction medics and the HSE for failing to report candidly adverse events. 

The experience in other jurisdictions has been that the introduction of open disclosure of medical errors has led to a decrease in medical negligence litigation.  Dr. Timothy McDonald, Chief Safety and Risk Officer for Health Affairs at the University of Illinois, told a recent conference in Dublin that since a similar Duty of Candour system was introduced in Illinois, malpractice expenses had dropped by $22 million over three years and claims had fallen by up to half.  It appears that patients are less likely to sue when a hospital is forthcoming and transparent.

Patients, doctors and health managers would all benefit from the introduction of a system requiring healthcare professionals to disclose adverse medical events promptly.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.


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