Is Current Clinical Negligence Legislation Fit for Purpose?

I recently read a headline to the effect that a leading figure in the HSE opined that current  clinical negligence legislation is not “fit for purpose” .

It got me thinking of the hundreds of medical negligence cases that I have prosecuted under this legislation over the past 15 years or so when I began to practice exclusively in this complex area of litigation when I joined Cantillons solicitors (who have specialised in Medical negligence  since 1980).

My first client was a lovely gentle giant of a man, a farmer who was exposed to, and contracted, Hepatitis B in a HSE run hospital in the South East of the country.

Hepatitis B is spread when blood, semen or other body fluids from a person infected with the virus enters the body of someone who is not infected.

It is a serious disease caused by a virus that attacks the liver.  When he was first told that he had Hepatitis B, our client was unaware of the source of the infection.

He was not aware at this point that a cluster of five infected patients had been identified as former patients in two HSE run hospitals in the South East.

In addition to the trauma of the diagnosis, our client’s spouse – a nurse- also had to contend with feelings of betrayal, knowing that the Hepatitis B virus is contracted mainly through dirty needles or unprotected sex.

Suffice to say that the diagnosis had a devastating impact on our client and his family.  For eleven months, they lived in a nightmare situation of knowing that he had been infected with Hepatitis B but not knowing how.

The HSE didn’t have the decency to tell him.

Our client came to us looking to get answers to the many questions that he had (understandably and reasonably so).

We managed to get the answers through the litigation process.

We discovered that, unbelievably, one of the hospitals involved in the Hepatitis B outbreak had engaged in a practice of re-using needle holding devices in the phlebotomy procedure (the practice of taking blood) up to ninety nine times!

An investigation and look back review was carried out by the HSE and despite the fact that several draft reports issued (which this firm had to fight tooth and nail  to get through the litigation process) and despite assurances that the final report would be published, it never saw the light of day.

The system worked in that we got our client the answers to his questions and substantial and wholly deserving compensation which he was offered finally on the steps of the court on the day his case was due to commence in the High Court in Dublin.

He was vindicated . He died a year later.

We are all too slowly moving on  from this practice of sweeping mistakes under the carpet and I do believe that the current clinical negligence legislation and brave people like our clients who have taken on the might of the HSE have contributed in no small way to ensuring that appropriate protocols and guidelines have been put in place to better protect the patient to include the HSE Open Disclosure Policy which has been in place since 2013.

Open disclosure is defined by the HSE as

‘An open, consistent, compassionate, and timely approach to communicating with patients and, where appropriate, their relevant person following patient safety incidents. It includes expressing regret for what has happened, keeping the patient informed, and providing reassurance in relation to on-going care and treatment, learning, and the steps being taken by the health services provider to try to prevent a recurrence of the incident’.

Unfortunately, to this date, it is still merely a policy, a guideline and my colleagues and I here in Cantillons have seen it ignored time and time again.

I am not for one moment saying that the current litigation system does not have its flaws.

It is  time consuming. The average case takes six years in our experience.

It is expensive, largely due to the failure to admit wrongdoing at a far earlier point in time.  Compiling independent expert reports in medical negligence cases runs to tens of thousands of euros.

The State Claims Agency manages claims of medical negligence against the HSE.  Defences filed by the  HSE routinely adopt a “Defend  and deny” approach.

Improving the current system is in fact within the  gift of the HSE.

If a mistake is made, the right thing to do is to accept and acknowledge the mistake. Admit liability at the earliest possible opportunity. This would reduce the cost and duration of medical negligence claims.

I will leave the last word to a client who suffered life changing injuries due to a hip replacement that went wrong.

She was left with a permanent limp, chronic daily pain and unable to continue in her job.

She was pretty much told by the surgeon that her failure to recover may have been her fault for engaging in physiotherapy.

She came to us in desperation to find out what had happened.

We investigated and discovered that the surgeon had negligently sawed her greater trochanter, partially dividing it from the rest of the femur.

We secured a very substantial, and thoroughly deserved,  settlement for her to fund the care and therapies that she needs for the future, thereby providing her with much needed, and long awaited, peace of mind.

A recent email from this client, some of which I have copied below,  is testimony to the  current legal system having worked for her.

“I just thought I would send you on photos of our old house and now that we have finally moved back since February our transformed house. There are snags still to be done.   All doors are wheelchair accessible, the kitchen has a raised oven and no more bending for washer and dryer. 

All this is due to your hard work and diligence. So when you ask yourself the question why do you go that extra mile. The answer is that you have transformed our lives for the better and I have no doubt  countless others. 

We are eternally grateful. I now wake up in a brighter, warmer comfortable house.

As you know my case was never easy and at times I felt broken and couldn’t see the light, but how lucky was I to have you on my side fighting for me and engaging the experts.

So wishing you and the team continued success.”

Contact us at Cantillons Solicitors at Cork  +353 (0)21 4275673 or Dublin +353 (0)1 264 1802 or email info@cantillons.com  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. Many Personal Injury Solicitors portray themselves as “no win no fee Solicitors Cork” or “no win no fee Solicitors Dublin”. This term can be misleading and it is essential that you discuss fees with the Medical Negligence Solicitor you ultimately choose. At Cantillons Solicitors, we are entirely transparent