Statutory Duty of Candour is Crucial

I listened with sadness (and a distinct sense of déjà vu) to Ronan Dunnes’ statement yesterday outside the High Court in Dublin. Ronan Dunne is the father of Eoghan Dunne who received an award of €2.4 million in damages following failures of care at Portiuncula Hospital in County Galway which left him severely disabled. Mr Dunne described the family’s four year battle in their pursuit of justice and the truth for their little boy Eoghan. Yes, they received an admission and an apology, but they were given at the 11th hour and I suspect were largely for the benefit of the Court and media and not for the Dunne family.Unfortunately, the Dunne family’s experience is typical of the long, cruel and unnecessary delays brought about by the HSE and its indemnifiers, the State Claims Agency, in refusing to accept liability, when they have clearly been at fault and we see this time and time again with our clients.The system does not seem to see patients and their loved ones as people. When mistakes are made, all too often the instinct is to close ranks and not admit errors and they fear – wrongly as it happens – that admitting mistakes and apologising early, might in some increase the amount of damages that will have to be paid to victims or their surviving loved ones. It’s a group-think reaction that treats the patient and their loved ones as “clients”, rather than people. And ultimately, it is costing the HSE and taxpayers more money than otherwise would be the case.The only solution is to have a Statutory Duty of Candour. A Duty of Candour is simply a responsibility on hospital, medical and nursing staff to tell the truth to patients, when there has been a mistake, which has adversely affected the patient. So if a Radiologist misses a cancer reading on a CT scan, or if a patient contracts sepsis after surgery, the onus is on the medical staff to admit that to patients or their families as soon as they realise their error. It is a sad indictment of our system that the most obvious approach, namely to tell the truth, needs to be legislated for but that is the reality. The present system is clearly not working. That is borne out by Mr Justice Kevin Cross’ comments when approving the interim settlement in the Dunne case yesterday, when he observed that litigation was the only way that families like the Dunnes could achieve justice. In February 2015, the then Minister for Justice, Leo Varadkar promised to make it mandatory for medical and nursing staff to admit errors that have caused harm to patients. Instead, he did a U-turn and the proposals in the Civil Liability (Amendment) Bill appear to be more concerned with protecting Doctors and Nurses who do make open disclosure than with giving patients and their families the right to open disclosure. The proposed new legislation merely supports a National Policy of Open Disclosure which has been in place since November 2013. Unfortunately, it has been my experience and that of my colleagues here in Cantillons that this policy of open disclosure has not been complied with.Tony O’ Brien, HSE Director General, has himself criticised the adversarial framework used to resolve litigation. Yet the solution to the problem is within the gift of Mr O’ Brien and his organisation. Tell the patient what happened and admit liability. Stop this war of attrition. The patient, the tax payer and society in general, will be better served. Karen Kearney, Medical Negligence Solicitor 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. Share on Social

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)