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2020 and still no Statutory Obligation on Doctors and Hospitals to tell the Truth

Posted in [Blog Medical Negligence ] on Wednesday, January 15th, 2020

“I am happy that I can walk, talk, eat, sleep, dance”.

What a great philosophy in life and as  said  by my 7 year old client, Iarlaith O’Cinnéide, to reporters following the conclusion of his court case on the 6th December 2019.   On that date, Mr. Justice Cross ruled an interim settlement of just under €3.7m for Iarlaith in the next 5 years to pay for his care and therapies and to help him fulfil his not inconsiderable potential.  Indeed, Brendan O’Connor in the Sunday Independent  on 8th  December 2019, predicted that Iarlaith “who shone like a beacon of positivity integrity resilience and joy outside the Four Courts last Friday, who is a credit to his parents and himself and who feels like the antidote to our cynicism about everything right now, will be elected President”. I wouldn’t be at all surprised!

A mistake was made during Iarlaith’s mum’ labour.  There was a failure to recognise and act upon worrisome signs in the CTG recordings (a CTG machine records the foetal heart rate and the uterine contractions during pregnancy) in the hour or so prior to Iarlaith’s delivery.  Furthermore, there was a failure to recognise that the heart rate, being recorded for the 30 minutes or so prior to Iarlaith’s delivery, was the maternal heart rate and not Iarlaith’s.

These failures caused Iarlaith to suffer an acute profound (near total) episode of hypoxia (deprivation of oxygen) leading to a catastrophic brain injury and resulted in Iarlaith having Cerebral Palsy.

At the time, Iarlaith’s parents were told that what happened to Iarlaith was just one of those things, and that it happens in about every 6,000 babies when the baby just come out flat and has to be resuscitated.   An Act of God as it were.

We now know that what happened was not an Act of God.  Unfortunately, it took six years, and a lengthy Court case, for the HSE to admit liability    The family have never received an apology for an event that ruined all of their lives.

At the time that Iarlaith was born, April 2012, there was no statutory obligation for doctors and/or hospitals to tell patients when mistakes were made.    Almost 8 years on that remains the case.  Indeed, matters seem to have gone into somewhat of a reverse due to  the provisions governing voluntary open disclosure in the Civil Liability (Amendment) Act 2017  which came into effect on Saturday 23rd September 2018.   This legislation was designed to give legal protection for the information and apology made to a patient during Open Disclosure.  The apology cannot be used in litigation against the Provider.  Previously, if a disclosure was made it was admissible in subsequent litigation.   Now it is not. So the apology is now voluntary and protected.

We are still awaiting the enactment of the Patient Safety Bill. This Bill is proposing to bring in an obligation for mandatory disclosure in respect of certain serious incidents.   According to the House of the Oireachtas website, which was last updated on the 12th December 2019, the Bill is currently before Dáil Éireann, third stage.   In its present format, it provides that the apology and, indeed, the information given to the patient, does not constitute an admission of liability or fault and is not admissible in litigation.  That is not an apology. That is a fudge. Another one.

Finally, I think it is worth saying that in a climate where there is so much criticism of the present Courts System, it worked for Iarlaith.   He, through his parents, (eventually)  achieved justice.   He so deserved it.

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

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

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Ernest J. Cantillon

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