When things go wrong, sorry is an important word

The comment by Ms Justice Mary Irvine that the late admission of liability by the defendants in the recent case of Dhara Kivlehan was “very regrettable” is timely.

The HSE agreed to pay almost €800,000 and has unreservedly apologised in the High Court to the family of the 29-year-old woman who became seriously ill when in Sligo General Hospital for delivery of her first child. She died eight days later.

In approving the settlement, Justice Irvine said this was the third case before her within the previous two weeks where the defendant had “held out almost to the bitter end” before admitting liability. This caused enormous distress to a family, she said.

Responding to her comments, the State Claims Agency has said long delays in relation to admissions of liability are due to the nature of assessing “expert medical evidence” in relation to cases.

Is a five-year delay, as experienced by the parents of a boy born at Waterford Regional hospital with cerebral palsy, and also referenced by Justice Irvine, reasonable?

Adverse outcomes occur in about 10 per cent of cases where patients undergo treatment in hospitals. The vast majority of these are known potential effects of treatment, the risks of which should be explained to patients as part of seeking informed consent.

Although not mistakes, they are unfortunate and the hospital, nurse or doctor should empathise and apologise for the suffering experienced by the person.

However, a minority of adverse outcomes are due to an error or series of errors. Patients affected in this way also deserve an apology but of a different nature than that offered in the case of an expected adverse outcome. In this case, the professional and institution must clearly apologise for the mistake and accept liability for the consequences of the mistake.

The “open disclosure” movement in medicine recognises that when an adverse outcome occurs, an apology, and, if appropriate, an admission of liability, must be made at the earliest opportunity.

Initiated by an Australian surgeon in 2002, open disclosure is now the norm internationally. Crucially, it advocates a consistent approach, whether an error was made or not.

In this country, an open disclosure programme was piloted by the HSE at two hospitals, the Mater University Hospital, Dublin, and Cork University Hospital over a two-year period.

In conjunction with the State Claims Agency, the HSE formally launched the programme last month. The programme’s advice to health service staff is clear: “Initial disclosure to the service user should occur as soon as possible (within 24-48 hours of the incident, if practicable).” However, the following rider is added: “An expression of regret or apology should not include any admission of fault until the facts are known.”

But open disclosure guidance elsewhere in the report is somewhat less defensive: “When it is clear, following a review of the adverse event, that the healthcare provider is responsible for the harm to the service user (eg wrong site surgery), it is imperative that there is an acknowledgment of responsibility and an apology provided as soon as possible after the event.”

In complex cases where an error has been made, which involves different healthcare teams and possibly more than hospital, it is not unreasonable that it might take some time to determine where in the process mistakes were made and by whom.

But there appears to be an inherent tension that then kicks in between the legal process and that of open disclosure. Even in the most complex cases, it should take months, at most, to establish liability. An appropriate apology should be forthcoming at this juncture. But as we have heard recently, this apology may not emerge for five years.

In fairness to the HSE, its open disclosure policy is only now being rolled out nationally. Its full implementation cannot come quickly enough for those who experience an adverse outcome in our health system.

mhouston@irishtimes.com
muirishouston.com