Not Another Expert Group
Over two months has now passed since the remarkable Vicky Phelan settled her claim in the High Court against a US laboratory, Clinical Pathology Laboratories Inc. Two months on, we should now have to hand the results of a Scoping Inquiry headed by Dr. Gabriel Scally (set up on the 8th May 2018). Instead, we got a progress report from Dr. Scally on the 14th June 2018, in which he outlined the drip-feed and subsequent paper bombing of documentation (a large volume of it in unsearchable format) that he had received to date from the HSE. The net effect of this stonewalling is that the expected end date of Dr. Scally’s investigation has slipped by 2 months. This takes us to the end of August.
In the past week or so, Minister for Health Simon Harris has confirmed that a Commission of Investigation will be set up in September 2018, to get to the bottom of many of the issues, particularly issues in relation to accountability and who knew what, where and when.
I just wonder what will happen to those, if any, who are found accountable. Will heads roll? Will lessons be learned? Only time will tell, but the cases of Alison McCormack and countless others do not instil optimism.
Also in the past week, Minister Harris set up an expert group chaired by Mr Justice Meenan to examine whether there are alternatives ways to address clinical negligence claims outside of the courtroom.
Undoubtedly, improvements are necessary to the current system which can be lengthy, attritional and insensitive for victims.
However, the phrase “be careful what you wish for” springs to mind.
On the face of it, the setting up of this expert group appears to be driven by a desire to reduce costs associated with clinical negligence cases and the delays in dealing with such cases.
It is our experience that the costs of clinical negligence cases are largely as a consequence of the conduct of the defendant (in the vast majority of the cases, the State Claims Agency as indemnifiers for the HSE) in their defend-and-deny policy. This policy of course has an impact on how quickly the case gets to court. In other words, if a full defence is filed by the SCA (even where the negligence is glaring), the Plaintiff patient must then spend the time and money securing appropriate expert reports confirming causative negligence, which are necessary to prove a case of medical negligence in Court.
Thus, the problem with the existing Court System is the way in which it is handled by the defenders of those who created the problems in the first place. They are running this agenda. They would like their errors swept under the carpet.
Any solution and proposed expert group must contain representatives from the patient representative groups. These people must be in the majority in that group and not the people and their representatives who create the problems in the first instance.
The most glaring solution to the present problem is to introduce a duty of candour on a statutory footing. In other words, make it mandatory for doctors and nurses to tell the truth when mistakes are made. If, when a claim is made, the Defendant was required by law to set out its stall with particularity, including what happened and why it happened, truthfully and honestly (under criminal sanction if it does not, as a Plaintiff is required to do) then it is our view that these cases would be settled far sooner and far cheaper through the existing Court System.
At the present time, someone who goes in to have his left leg amputated, but has his right leg amputated, would be met with a legal Defence which will say that he was not in the hospital and that, in any event, he did not have any leg amputated and in fact he was not missing his left leg when he went in either. People would be horrified to see the type of blanket legal Defences that are put in. They do not address the situation.
All that is required is a simple change in the law, which would require people to be truthful. What is the downside to that?
It must also be remembered that the Court System works, by and large, for the victims of clinical negligence. This undoubtedly comes at a cost, but is it a cost that society values? Take Vicky Phelan’s case. The Court System worked for her and indeed, it has highlighted what would otherwise have been swept under the carpet.
We now have an investigation into our entire Cervical Check System, increased awareness by patients and medical professionals alike and hopefully, we are learning from our mistakes. If a confidential process had been in place this would never have happened and thousands of women would be none the wiser about the mistakes in their smears and the cover up that ensued.
There is a David and Goliath battle in these Court cases. David would shrink further in size, if he was pushed into a private hearing and settlement.
Accountability is important and public accountability is even more important.
Be careful what you wish for.
Orla Kelly and Karen Kearney, Medical Negligence Solicitors, Cantillons Solicitors
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or firstname.lastname@example.org 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.