Is there a better way of dealing with medical mistakes?

High Court judges tend to choose their words carefully, so when Ms Justice Mary Irvine pointedly criticised the State for its approach to medical negligence cases in recent weeks, people took notice.

Approving an €8.5 million settlement for a six-year-old child with cerebral palsy, Ms Justice Irvine described as “highly regrettable” the Health Service Executive’s five-year delay in admitting liability for the injuries suffered due to negligence in the child’s birth at Waterford Regional Hospital.

She said it was the second case before her in the same week where the State had delayed in admitting liability, causing additional stress and fear for the children and families involved.

Catastrophic injury
The judge's remarks turned a spotlight on to one of the most sensitive and fraught areas of law and medicine: an adversarial system that can pit a patient who has suffered catastrophic injury against medics whose reputations are at stake and, in the middle, State bodies charged with agreeing a level of compensation from taxpayers' money that will meet the patient's needs for the rest of his or her life.

One of the key players is the State Claims Agency, the division of the National Treasury Management Agency that handles medical negligence and malpractice claims against the State.

Defending its handling of such cases, the agency says its policy is to admit liability when the expert medical evidence indicates there has been a breach of duty in a particular case.

The commissioning of that evidence can take considerable time, especially in complex cases that range across different fields.

“We have no interest in grinding down plaintiffs, hoping that we’ll get some traction for that. That’s not how we approach our business,” says the agency’s director, Ciarán Breen.

“The last thing we should be doing as a State agency is to act in any kind of oppressive or difficult manner.”

Official figures show that, last year, 50 per cent of claims under the clinical indemnity scheme administered by the agency were resolved by negotiating a settlement – compared with 25 per cent in 2008.

Fewer than 3 per cent were resolved by the courts last year, and those that do go to litigation are generally those that involve infant cerebral palsy or other catastrophic injuries.

A great many cases are resolved in a relatively straightforward manner. The problems arise when an expert review commissioned by the State Claims Agency finds a clinician got it right, or when the agency’s estimate of the value of a case is significantly lower than the plaintiff’s.

“We are conscious of the fact that these are very tragic cases. Parents who deal with these children are heroic, in relation to how their lives are affected in the way they are,” says Breen.

“We understand that, and it charges these cases with a great deal of emotion. But knowing and understanding that, we have to deal technically in a tort system which says that they have to prove their case on a balance of probabilities test.”

'Wall of silence'
Over the past five years, the agency has fought just 18 medical malpractice cases, of which five were unsuccessfully defended.

For many, the root of the problem goes much deeper. In 2008, the Commission on Patient Safety concluded that the system of compensation for medical negligence in Ireland was not conducive to patient safety.

"It's not conducive to an honest and open communication process because the tendency is for clinicians and risk managers in hospitals to erect a wall of silence, which in fact pushes patients further into litigious mode," says Deirdre Madden, senior lecturer in law at University College Cork, who chaired the commission.

Studies consistently show that poor communication before and after an event influences a patient’s decision to take action, Madden says.

Where they feel they have been treated with empathy and respect, they are less likely to go to a solicitor.

The commission recommended that the patient should be given an explanation and an apology as soon as possible.

But medics are understandably concerned about a loss of professional reputation, and solicitor Ernest Cantillon, who has represented patients in high-profile cases, believes some of the problem stems from a system in which doctors deny everything – an approach rooted in the assumed right against self-incrimination.

One proposal that would make it easier for clinicians to speak more freely is a so-called apology law.

Such a measure, which is on the statute books in up to 40 US states, allows medics to disclose information and apologise without it being admissible in court – giving comfort to the doctors who want to do the right thing.

National policy
Such a law was contained in the 2008 patient safety report and is expected to appear in the forthcoming Health Information Bill.

In the meantime, a range of moves are afoot to improve the situation.

Medical Council guidelines now include an obligation to be candid and the health service last month 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.

The Irish Medical Organisation, which represents doctors, has said the policy document falls short by failing to address the implications of disclosure to third parties for doctor-patient confidentiality and not setting out what supports will be provided for hospital staff.

It also recommends that a risk assessment be carried out to minimise the risk of further adverse events and the negative impact on waiting lists resulting from the time required for healthcare staff to familiarise themselves with the guidelines and then to report each incident.

However, the IMO sees the long-awaited Health Information Bill, with its protection for doctors who apologise, as “a major step towards promoting open disclosure and changing the culture of adversarial litigation following adverse events”.

Pre-action protocols
In an attempt to reduce the number of cases that end up in the courts – and make litigation less drawn-out when it happens – a medical negligence working group chaired by Ms Justice Irvine has recommended the adoption of pre-action protocols.

These would require the plaintiff and defendant to set out their cases openly and transparently from a very early stage so that they can zone in on specific points of contention in what can often be deeply complex cases.

“If that was adopted here, it would be quite an innovation,” says Breen. Legislative change would be required to do so, but the British experience suggests it would result in a fall in the number of cases going to court.

In the meantime, the State Claims Agency reports, mediation is increasingly being used as a tool to settle negligence cases.

If all else fails, attention may turn to the idea of a duty of candour, which would place a positive obligation on medics to disclose details of an adverse event.

The principle already exists as an ethical obligation in the Medical Council’s guide to professional conduct, but some believe it should be enshrined in the HSE contract for consultants or even given statutory footing.

Conduct guide
Since such a provision was introduced in Illinois, malpractice expenses have dropped by $22 million over three years and claims have fallen by up to 50 per cent. Liam Moloney, a Naas-based medical lawyer, says Ireland should follow suit.

He argues that many doctors “pay lip service” to the principle laid down by the Medical Council and points out that the conduct guide has no legal effect.

Yet, ideally, a statutory duty of candour wouldn’t be necessary. If people are forced to do things, sometimes they do it in a very minimalist way,” Madden remarks.

“You would much prefer if people would do it because it’s ethically the right thing to do.

“If that doesn’t work, then perhaps it may be necessary to legislate for it, but that’s maybe not for today or tomorrow.”