The Supreme Court recently ruled that a patient could be compensated for mental distress and delay in treatment, writes JOHN HEALY
MANY OF us were dismayed to read this week of yet another exposure of mismanagement in the public healthcare system.
We currently know that some 58,000 X-rays were taken in Tallaght Hospital between 2005 and 2009 but were not, until recently, reviewed by any consultant radiologist there.
There is one particular irony that received little attention as this news broke. Months before the first of those X-rays was taken, a radical breakthrough was achieved in Irish medical malpractice law in Philp v Ryan (2004) 4 I.R. 241.
That decision greatly liberalised the ability of patients to recover compensation against doctors and hospitals for negligently delayed cancer diagnoses.
In Philp, a plaintiff recovered €45,000 against the Bon Secours Hospital in Cork after diagnosis and treatment of his prostrate cancer, then at an advanced stage, had been unjustifiably delayed by a period of eight months.
The award of compensation was expressly grounded by the Supreme Court in the mental distress and anxiety the plaintiff suffered because of the delay and additionally, his loss of valuable medical opportunities to treat the cancer and the resultant loss to his life expectancy.
Casting aside traditional obstacles to recovery of this kind, Mr Justice Nial Fennelly in the Supreme Court anchored his judgment sympathetically in the following principle: “It seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition. I can identify no contrary principle of law or justice.”
To appreciate the significance of the advance made by the Supreme Court in Philp, it is necessary to state the obstacles to recovery that were overcome in that decision.
By traditional law, a plaintiff is not entitled to compensation if a defendant’s negligence has not yet caused him to suffer a personal injury – which in this context is largely synonymous with a physical injury.
(By way of exception, the courts had begun to recognise claims grounded in shock-induced psychiatric injury, aka “nervous shock”, although this claim is so narrowly defined that it arises only in exceptional cases.)
A plaintiff could not ground his claim in “mental distress” or “loss of life expectancy” if he had not yet suffered a physical injury that caused those forms of loss. If physical injury had in fact coalesced, he could recover those losses, but not before.
This was a particularly unjust limitation on the right of patients to be compensated for the injurious effects of medical negligence – not least because in cases of negligently delayed diagnosis or treatment, injury often first coalesces with the death of the patient.
The injustice was sharply underlined by the much more limited nature of claims brought or determined in circumstances where the defendant’s negligence had caused or accelerated the patient’s death.
One of the most stinging ironies in the personal injuries system is that if a defendant’s negligence is so injurious as to cause a person’s death before any claim is determined, the monetary value of the claim plummets.
Any claim brought on behalf of his estate becomes limited to “special damages” (such as loss of earnings and medical bills).
Surviving “dependants” may bring a “fatal injury” action under part IV of the Civil Liability Act 1961, limited to loss of financial dependency and to mental distress, the latter capped at €25,394 for all dependent en bloc.
This made the Supreme Court's ruling in Philpall the more resonant, since its effect is now to entitle patients, whose diagnosis and treatment has been delayed by medical negligence, to recover compensation for their mental distress and the estimated reduction in their life expectancy.
The timing of the decision in Philp, so soon before the Tallaght cases, makes this present scandal seem uncommonly absurd.
It was roundly described this week by Government representatives as a “failure in the system”, yet it is another irony that governmental policy since 2001 has been to heap vast resources precisely on a system-oriented approach to Irish healthcare.
A great many public committees, think-tanks and reports have been commissioned in the past decade and there has been constant talk of prioritising patient safety and co-ordination of information and resources in the system, as well as the cultivation of “centres of excellence”.
The scale of the error in this scandal – the number of patients affected and the length of time by which their diagnoses were delayed – seems to set at nought these pious ambitions and exposes yet more evidence of chronic mismanagement of public healthcare resources.
The Minister for Health has evidently sought to downplay the significance of the blunder by reminding us, as if it were needed, that no system can be entirely error-proof and that significant strides have been made in recent years to improve the healthcare system.
This will hardly appease the public, who are well aware of waste and inefficacy in public resources. It must also gall the many patients and families who worry that life- spans may have been avoidably shortened in the process.
John Healy is a practising barrister in the Four Courts, Dublin, and a specialist in medical negligence. He is the author of Medical Malpractice Law, recently published by Round Hall Press, Dublin.