I am a solicitor specialising in medical negligence cases. Before practising in Ireland, I was a partner in a London firm which acted for patients who had suffered from medical accidents, as well as for hospital trusts which were being sued for such events. Before that, I worked as a nurse in one of London's largest hospitals.
As a solicitor in London, the instructions I received from the hospitals when there had been a culpable misadventure, was to acknowledge it, apologise to the patient and enter into an arrangement to compensate the injured person.
If there was an error, it was better to have it exposed to avoid it being repeated, rather than seek to defend the indefensible. To do that would send a signal that an unacceptable practice was being endorsed. Having acknowledged the wrong, I often found that victims did not bring any claim or if they did, they were far easier to deal with if they had been dealt with in a transparent way from the outset.
My work as a medical negligence solicitor in Ireland is in sharp contrast to my experience in the UK. I have represented patients in Ireland who have had the misfortune to suffer catastrophic injuries as a result of clear medical negligence.
ersonal injury summons When a claim is made by service of a p
ersonal injury summons, it is responded to by a notice for particulars, a set of questions raised by the defendant to find out more information about the plaintiff’s case; in fact, the defendants invariably know the answers to these queries which are just an attempt to find out what the patient knows about the events that give rise to the claim. When the defence is eventually filed, one learns nothing from the defence as to what the true position is.
Pleadings facilitate a defendant in finding out what a patient plaintiff knows about the wrongdoing. No focus appears to be upon getting defendants to set out their stall, with some particularity, as to what happened, and why it happened.
It must be noted that procedures often occur when a patient may be under anaesthetic and not know what happened.
It is interesting to observe that section 10(1)(f) of the Civil Liability & Courts Act, 2004 requires a plaintiff to set out: “Full particulars of the acts of the defendant constituting the said wrong and the circumstances relating to the commission of the said offence.” A corresponding obligation on a defendant contained in section 13 merely requires the defendant to set out “full and detailed particulars of each denial or traverse”. There is no obligation to set out details in relation to the “circumstances”.
A trial date will ultimately be allocated to hear the case. If a judge is assigned then and, invariably only then, will an offer be made. Why could this not all have occurred years previously? I see no logic in it.
Hospital representatives complain bitterly about legal costs. I think anybody looking at the system would see the reasons why these costs are accruing. It is simply because of the way these cases are being defended. This is not going to change without statutory intervention.
The Medical Council recognises the need to be candid. The HSE has issued a policy document which signs up to the notion of candour in the hospital-patient relationship. How it works in practice is, I have to say, significantly different, but at least there is a move in the direction of candour. Unfortunately, there is no move in that direction in legislation or in the pleadings that are filed in court.
War of attrition
Medical errors occur. When they occur, they need to be acknowledged, both in the direct doctor-patient relationship, but also in formal proceedings lodged in court. It is as if the hospitals, the
State Claims Agency
Medical Protection Society
, which provides indemnity cover for Irish doctors, have sought to engage in a war of attrition. They have lobbied (successfully) for anti-patient plaintiff legislation. They highlight significant costs, but fail to publicise the reasons for these costs, namely the manner in which they defend these cases.
If the hospital had to focus from the outset in setting out what happened, rather than seeking to ascertain what the patient plaintiff knew about what happened, things would be radically different. In short, the truth should out, and this can only benefit all of us.
Pat Daly is a litigation solicitor in Ernest J Cantillon Solicitors