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“Not That Kind of Person”


Posted in [Blog] on Monday, November 28th, 2022

I am not that kind of person” is a familiar refrain that I hear from many of my clients when I first speak with them regarding their medical negligence query.  I reassure them and tell them that so many of my clients feel the same, namely that sense of shame about consulting with a Solicitor (often as a last resort and following stonewalling by the HSE and/or the doctor) in an effort to get the truth about their health and what went wrong.

The many clients that I have had the honour of representing over the years are in fact brave, resilient and awe-inspiring.  There is no properly funded legal aid system for medical negligence litigation here in Ireland so every person who brings a claim against the State Claims Agency (the indemnifiers for the Health Service Executive) and the MPS (the main indemnifiers for private Consultants and GPs) run the risk of losing his or her case and having to pay the costs of the other (winning) side which in a fully contested High Court case can run to hundreds of thousands of euros.  You could say that that is fair enough.  However, what is not fair is when the HSE/SCA and MPS defend the indefensible using their deep pockets to do so (in the case of the HSE, those deep pockets are funded by us tax payers).

I have already blogged about a case that I settled in late 2020, one of the most difficult cases that I have prosecuted in my career.  Here is the link in case you haven’t read it and wish to do so.

https://cantillons.com/blog/defendants-experts-it-is-time-to-stop-the-whitewash/

The negligence in that case was blatant; yet a number of doctors here in Ireland wrote reports supportive of the Defendant doctors and the net effect of that whitewashing was to prolong the litigation for my client ( who was already desperately sick because of the Defendants’ negligence)   thereby causing further and unnecessary hardship to my client and his wife and family  and hugely increasing the costs of the litigation.

Lots has been written over the past number of days about Dr Gabriel Scally’s final report on CervicalCheck published on the 23rd November 2020.  It is a 45 page report and I would urge anyone who hasn’t already done so  to read it.  He has much to say about the Government’s (continuing) failure to introduce a statutory duty of candour, namely a statutory obligation for doctors to tell the truth to their patients which Dr Scally says should be “as natural as breathing”.  He also specifically notes that the Medical Council Guidelines remain unchanged,  despite his recommendation in 2018 that they should insist that doctors must be open and honest with patients rather than using the word should.  The fact that the wording has remained unchanged speaks volumes in my view.  However, I have been writing on the need for statutory duty of candour ad nauseam for many years now and indeed my colleague Pat Daly has written eloquently about this in a recent blog .

https://cantillons.com/blog/the-odds-are-stacked-against-the-victims-of-medical-negligence/

Instead in this blog,  I want to draw your attention to comments made by Dr Scally  in his overall assessment of progress of  CervicalCheck. ( The emphasis is mine).

He states:-

“What was revealed in the aftermath of Vicky Phelan’s court case was that Ireland had a cervical screening programme that was deeply flawed. To touch only on three points: the cervical cytology slides of Irish women had been sent to far distant laboratories abroad that were entirely unknown to CervicalCheck; there was a quality assurance system within the Health Service Executive that was not fit for purpose; and some doctors working for CervicalCheck communicated to women and families the findings of an ill-designed audit in ways that were at times obstructive and callous. It is, in my view, entirely reprehensible to claim that, in the past, CervicalCheck was as good as any other cervical screening programme in the world. If you can’t bring yourself to acknowledge past failings, why would anyone trust you today? …

 In retrospect, it is practically unbelievable that the cytology slides of Irish women were being sent internationally to laboratories that were unknown to CervicalCheck and did not possess the specified accreditation status.  Instead of the six laboratories known to CervicalCheck, 16 laboratories dealt with Irish cytology slides, and two of those laboratories had only one person reviewing slides.”

Due to the late  Vicky Phelan’s bravery and refusal to sign a non-disclosure agreement,  a deeply flawed” cervical screening program was revealed and Dr Scally has stated that CervicalCheck is a substantially better screening program today than it was in 2018.

He states:

“In my view, women can have confidence in and should take full advantage of the cervical screening program.  It has saved many women’s lives and will continue to do so.”

We women in Ireland will be forever in Vicky’s debt.

Imagine if Vicky Phelan had decided that she was “not that kind of person?”.

Contact us at Cantillons Solicitors at +353 (0)21 4275673 or 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. 

Karen Kearney

Partner

Experience

In her twenty years as a practising solicitor, Karen has worked with a number of leading law firms in Limerick and Cork where she has acquired extensive experience in all areas of the law, with a particular expertise in medical negligence cases.

Karen has represented clients effectively in many forums including the District Court, Circuit Court, High Court, Employment Tribunals and Coroner’s Court. She has acted for, and advised, State Bodies in respect of all areas of the law to include childcare law; employment issues; food safety and health and safety issues.

Karen joined Cantillons Solicitors in November 2009 and works in the Medical Negligence Department practising clinical negligence litigation.  She is expertly assisted by Patricia Sisk and April Wiseman, Legal Assistants.

She is very proud to be a member of the medical negligence team which  has been involved in precedent-setting  cases since 1980 and which received the inaugural award of Litigation Team of the Year, National Irish Bank Law Awards in 2012.

Karen regularly attends international conferences in order to add to  her pool of her experts and ensure access to the world’s best. She is also regularly asked to speak at national and international conferences concerning medico-legal issues. She is a regular speaker at the annual Medical Law Conference; giving presentations on healthcare law, practice and procedure to employees in the healthcare section and fellow lawyers. This lecturing experience means that Karen has an excellent grasp of law in theory as well as in practice.

Karen has featured on national television and on local and national radio  in relation to this specialised area of medical negligence litigation.She has been commissioned to write opinion pieces on topical issues in the medical negligence area, published in national newspapers. Notably, she first highlighted in the Irish Examiner, the Minister for Health’s failure to introduce a statutory Duty of Candour-  a legal requirement for medical staff, nurses and management to tell patients and their families if a mistake has been made which adversely affects the patient’s health – despite the Minister’s promise to do so.

Karen also writes a weekly column in a local daily newspaper, the Evening Echo, addressing reader’s legal queries. This column  appears in Monday’s edition of the paper.

Karen has developed real expertise in her field and has shown great dedication in pursuing complex injury cases to settlement.

Karen gets referrals from patients nationwide. She represents her patients with determination and compassion.

Qualifications

  • BCL Honours 1992
  • Admitted to the Roll of Solicitors in Michaelmas 1996

Associations

  • Former Secretary of Limerick Bar Association
  • Former member of the Litigation Committee of the Law Society of Ireland
  • Member of the Medical Injuries Alliance
  • Member of Action Against Medical Accidents (AvMA)

Related Experts

Ernest J. Cantillon

Managing Partner

Karen Kearney

Partner

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