When Telling the Truth is Optional and Protected

It is disappointing news (in my view) that the Minister for Health, Simon Harris, plans to introduce a voluntary Open Disclosure Scheme which will give medical professionals legal protection for any information given following a patient safety incident.

Minister Harris has been reported as saying “Saying sorry and expressing regret when something goes wrong should not be a last resort in our health service. It is important that where any apology is warranted it is made when the facts of the incident are known and not years later in the High Court. ”

I agree entirely with Minister Harris. The honourable thing is to tell the truth. Now it appears that the doctors and nurses will only tell the truth if it is protected. This is the only situation where such bizarre protection is given. It happens in no other professional relationship and if there was any relationship where candidness was necessary, it must surely be one where one party (the patient) puts his/ her life in the hand of the other (the doctor/nurse).

Even more incredibly (again in my view), the decision not to make it a statutory requirement to tell truth was based on advice given to the Minister by Dr. Tony Holohan, Chief Medical Officer and who is also a medical doctor. He is reported as having said that the legal requirements compelling disclosure make doctors and nurses more fearful of adverse legal consequences and therefore, less likely to disclose openly and honestly.

That has not in fact been the international experience. Pioneering work has been undertaken by Dr. Tim McDonald at the University of Michigan Health Service.  Dr. McDonald was a Professor of Anaesthesiology and Paediatrics at the University of Illinois.  He was also their Chief Safety & Risk Officer for Health and in addition, a lawyer.
He has long advocated for a duty of candour to be imposed on healthcare professionals. He believes it is good for the patient, healthcare professionals and society.

When Dr. McDonald introduced a duty of candour in Michigan, the number of notifications of adverse incidents shot from about 1,500 to 9,000 per annum.   One would expect that the cost to the hospital would have risen significantly.  It is counter-intuitive to think that admitting one’s mistake could save money, but their experience has been to that effect.  Damages payments per case were reduced by 47% and the average settlement time reduced from 20 to 6 months.  Many patients decided not to sue at all, once they received a frank admission.  Insurance costs tumbled.

Indeed, here in Ireland, under the existing Medical Council Guidelines, where there has been an adverse event, doctors are obliged to acknowledge that the event happened; explain how it happened; apologise if appropriate and give an assurance as to how lessons have been learned to minimise the chance of this event happening again in the future.

It has been my experience, and the experience of my colleagues in the Medical Negligence Department here in Cantillons, that doctors are not complying with their obligations under these Guidelines.

Furthermore, the HSE has had a National Open Disclosure Policy since November 2013. It is merely a policy, a guideline. Again, my colleagues and I have seen it ignored time and time again.

It is an indictment of our system that the most obvious approach, namely to tell the truth has to be legislated for. However, it is a missed opportunity not to make the obligation to tell the truth mandatory.

Karen Kearney, Medical Negligence Solicitor, Cantillons Solicitors

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)