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The Odds are Stacked against the Victims of Medical Negligence  


Posted in [Blog] on Thursday, November 10th, 2022

On the 26th July 2022,  Judgement was handed down in a Discovery application in the case of O’Keeffe, Cliona and Alan Doran v Governor and Guardians of the Hospital for the Relief of the Poor Lying in Women Dublin 26/7/2022 No. 2020/8529 P [2022] IEHC 463.  The Judgement underscores the need for a renewed call to introduce a Statutory Duty of Candour.

Ms. O’Keeffe and her partner Mr. Doran’s baby daughter, Fiadh, died shortly after birth and they are seeking damages from the Rotunda Hospital (“Hospital”) in respect of the treatment provided during the birth.   Following Fiadh’s death, the Hospital conducted a Risk Management Enquiry and as part of the enquiry, staff gave statements and ultimately a Report was produced.  The Report was furnished to Ms. O’Keeffe and Mr. Doran who sought discovery of the staff statements made to the Enquiry. They believed that the statements would assist them in establishing negligence. The Hospital argued that it is in the public interest that clinicians and other staff who make statements to risk management enquiries need to be assured that their statements are not discoverable so that they can be as “candid as possible so that future patients at that Hospital (and at other hospitals in the State) will learn from any changes in practice which could arise from the frankest possible statements made to that enquiry”. Twomey J. ultimately refused to order discovery of the statements made by the staff to the Enquiry.  Essentially, Twomey J. was of the opinion that the public interest of improving patient care in the future outweighed the public interest in the administration of justice.

The decision in this case is a legacy issue of the failure to introduce a Statutory Duty of Candour.  In 2015, Leo Varadkar, the then Minister for Health, described incidents in which medical professionals fail to adhere to a duty of candour and disclose relevant information as being “the equivalent of a hit-and-run.”  He announced that he would introduce a new law whereby medical professionals would become legally obliged to admit their mistakes and there would be mandatory reporting of errors.  However, the Minister “adjusted” his view on the advice of Dr. Tony Holohan, Chief Medical Officer.  Dr. Holohan stated that “There is no clear evidence to show that a legal requirement to openly disclose to patients will make doctors and nurses more inclined to do so.”  The reality was that the Medical Profession were concerned about litigation and damage to reputation.   Their arguments had the necessary traction and the Statutory Duty of Candour was not implemented.   However, Doctors in particular have an ethical and professional responsibility to disclose medical errors.   Medical ethics are based on the Hippocratic Oath which has been summarised that a Doctor’s primary objective is to ‘Do No Harm’.  When a harm (‘adverse event’) occurs, the “Guide to Professional Conduct and Ethics for Registered Medical Practitioners (Amended) 8th Edition 2019” sets out guidance as to what the medical practitioner should do.  The salient points have been set out below:

 “64.3 If an adverse event occurs, you should make sure its effects on the patient are minimised as far as possible. If the patient needs further care because of the adverse event, you should make sure they are helped and supported through this process.

 64.4 If you are involved in an adverse event, you should report it, learn from it and take part in any review of the incident.”

It will be apparent from the above that the Clinicians involved Ms. O’Keeffe care (as their patient) are obliged to minimise the effects on any harm.  As a Medical Negligence Solicitor, I have represented a number families who have lost loved ones as a result of medical negligence.  I have seen how individuals have responded to interpersonal loss and emerge from the experience albeit changed but not broken.   However, in cases where parents lose a child, it appears to be followed by a more intense grief than the death of a spouse or a parent and more often than not, the loss is more enduring and they often are diagnosed with abnormal grief reactions.    It is time to introduce a Statuary Duty of Candour.

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. 

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Ernest J. Cantillon

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Pat Daly

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