Time for the Truth: Open Disclosure and Resolution in an Appendectomy Medical Negligence Claim

I recently settled a case for a young man who had an appendectomy carried out at an HSE hospital  where  there was a failure to remove the entirety of the appendix, leaving an appendix stump measuring in excess of two centimetres.

There were also additional  failures in the post-operative period. These included negligent treatment of post-operative bleeding, a failure to perform a second surgery to treat that bleeding appropriately by failing to recognize and remove  the appendix stump.  Following this second surgery, our client’s condition deteriorated further and  the  stump became diseased and fell apart, which led to leakage of faeces / bowel content into the abdomen and abdominal sepsis.  Our client underwent a third surgery  seven days after the first surgery and  during this  third procedure  the appendix stump was finally removed.

The impact on our client was significant. In addition to the abdominal sepsis  and the third major operation washout and   excision of the appendix stump,  he had a prolonged hospital stay during  which time he was so ill that  at least one member of our client’s  family was by his side at all times to provide the necessary support and assistance.   He required a CT scan.  He suffered an infection of the laparotomy wound requiring out-patient  and GP follow up  and treatment to include further antibiotics and  dressings. He suffered a scar which had required 30 staples. He was out of work for 2 months.   He lost a significant amount of weight, approximately 22 kgs (3 stone 6.5 pounds). He suffered from fatigue.

The treating surgeon told our client and his father that he had “been to hell and back” and encouraged him to seek legal advice. That level of honesty was welcome. It was also, regrettably, rare.

Our client came to us to investigate a case for him.

The claim was progressed in the usual careful and structured way. The first step was to obtain and review the relevant medical records. Those records were then reviewed by us and we made the decision that an expert report should be commissioned to review the records and furnish us with his expert opinion on whether the care afforded to our client was negligent and,  if it was,   did that negligence cause and or contribute to our client’s subsequent difficulties (the latter is referred to as “causation”). The expert report confirmed negligence and causation.

We then wrote to the HSE setting out our client’s claim. In that correspondence, compliance with the HSE open disclosure policy was requested. Specifically, the HSE was asked to acknowledge the adverse event, explain how it had happened, apologize, and give assurances that lessons had been learned to minimize recurrence. The correspondence also indicated a willingness to mediate in an effort to resolve the matter without unnecessary escalation.

A  21-day deadline for response was set out. It was also made clear that, absent a satisfactory response, court proceedings would follow.

No satisfactory response was received. Proceedings were therefore issued on behalf of our client and his case commenced in the High Court.

In due course, the defence delivered by HSE Defendant solicitors was an “on-proof defence.” There was no admission of liability. The plaintiff was put on proof of the case (which remained the case for the duration of the litigation).

This came as a surprise to our client, given what the surgeon had said to him following the appendectomy, but not to us.

We progressed the case and secured a hearing date for case and proposed mediation to the Defendant, which is a  process where an independent Mediator (usually a Senior Counsel) helps the parties reach a compromise.

The majority of our cases now settle at mediation. Our clients like the process. It is  informal and confidential. It is far less stressful than going to Trial.

In advance of the mediation, the parties exchanged liability reports, albeit, on a without prejudice basis at the Defendant’s request  – meaning the reports cannot be shown to the Judge if the case goes to Trial.

The Defendant’s  liability expert report gave rise to serious concern. It was  an attempt to “defend the indefensible”  according to our client’s liability  expert who used words such as   “nonsense,” “crazy,” “irrational,” and “illogical” when discussing the report with me.

Settlement was achieved at the mediation, approximately four years after the index negligence, with significant compensation secured for our client and deservedly so.

Cases such as this show why open disclosure matters. When a patient has suffered a serious adverse event, the basic elements of a proper response are not complicated. There should be an acknowledgement of what occurred, an explanation of how it happened, an apology, and reassurance that lessons have been learned to reduce the risk of recurrence. Where appropriate, there should also be a genuine willingness to engage in mediation at an early stage.

That is not simply a matter of process. It is a matter of respect for the patient and family, and of integrity in the system.

In this case, the treating surgeon’s honesty was notable. Telling our client and his father that he had “been to hell and back,” and encouraging legal advice, was welcome candour.

It reflected a willingness to confront the reality of what had happened. Too often, however, that kind of truth arrives late or not at all.

The case also highlights an issue that arises repeatedly in medical negligence litigation: the proper role of the expert witness.

An expert doctor is not retained to act as an advocate for either side. The expert’s role is to provide an independent opinion to assist the resolution of the dispute. When an expert strays from that role and produces what I would call  a “whitewash report”.

We see this happening again and again in the cases that we prosecute.  Namely, where the negligence is blatant but yet some members of the medical profession here in Ireland are prepared to write reports, defending the indefensible.

It reflects very poorly on the medical profession and the net effect is to prolong the litigation, thereby causing further and unnecessary hardship to Plaintiffs and increasing the costs of the litigation, something that the Insurers for the medical profession complain bitterly about on a regular basis. I would call on the medical profession to stop this circling of the wagons once and for all.  If a mistake is made, the right thing to do is to accept and acknowledge the mistake. This applies to the doctor who made the mistake and also to the doctor who is engaged by the Insurers of the (negligent) doctor to comment on the appropriateness of the care afforded to the patient Plaintiff.  Not to do so is to further compound the injury to the patient.

Ultimately, justice will be achieved and money saved by doing so.  Isn’t this in everybody’s interest?

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.”