The medical negligence team here in Cantillons Solicitors have just finished prosecuting a medical negligence case in the High Court, Dublin. It ran for just under two weeks. There were two claims in fact. One for a first time mother for damages for physical and psychological injuries arising out of the mismanagement of her labour and delivery at a (self-professed) state-of-art maternity hospital whose mission statement is “women, babies and their families are at the centre of our service as we strive for excellence and innovation”. The second claim was for the mother in her capacity as “next friend” of her infant son (he cannot take the case in his own name as he is under the age of 18 years) who suffered a left Erbs Palsy (nerve damage to his left shoulder) and a right fractured humerus during the course of his delivery.
For five years, the Defendant, the State Claims Agency, on behalf of the maternity hospital, defended the claims. This meant that for five years, my client worried and stressed about the case. Amongst her many worries was the very real prospect that she could lose the case and this would of course have huge financial implications for her because invariably the losing side must pay the costs of the trial which would run into tens of thousands of euro. Further of course, whilst liability was denied we had to commission on behalf of the Plaintiffs very expensive reports dealing with liability. Similarly, expensive experts are retained by the Defendants. Associated legal costs were incurred.
The Defendant had denied the claims in full save for one admission of negligence regarding a swab left inside of my client following the delivery and which was removed through her episiotomy stitches some three days later. The Defendant denied however that she suffered any injury in respect of this negligence!
The case opened in the High Court and on the morning of the third day, the Defence legal team approached us and indicated without explanation that they were now admitting liability. No apology was offered.
So much for the Open Disclosure National Guidelines, which were introduced in November 2013 and apply both to the HSE and the State Claims Agency.
Open Disclosure is defined as follows:-
“An open, consistent approach to communicating with patients when things go wrong in healthcare. This includes expressing regret for what has happened, keeping the patient informed, providing feedback on investigations and the steps taken to prevent a recurrence of the adverse event.”
Unfortunately the Guidelines are exactly that, namely Guidelines only. There is no statutory duty to disclose and there are no penalties for failure to disclose.
Leo Varadkar, who is a doctor and also our Minister for Health addressed the Oireachtas Health Committee recently. He made the observation, perhaps in rather dramatic terms, that the failure to be candid after an adverse medical incident, was akin to a hit and run. Whilst it is, as I say, dramatic to make this comparison it is perhaps also apt. The Minister in fact went on to indicate that he was horrified that this was happening and indicated that he was going to bring in a statutory duty. Unfortunately this is a promise that is made by a politician and comes with a “health warning”.
The introduction of a statutory duty of disclosure can only be for the good of patients and for society as a whole. Unfortunately it will come too late for our client. She did not get disclosure; nor an apology.
For further advice on these issues, please feel free to contact me, or another member of the team, here at Cantillon Solicitors on 021 4275373 or email [email protected].
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.