Slow dance of litigation in medical negligence cases benefits no one

Two months ago a senior High Court judge was driven to comment on what she perceived as the unacceptable position being repeatedly taken by the Health Service Executive in choosing to defend cases to the bitter end even when the likely course of events had been clear from early on.

Judge Mary Irvine noted that in one particular case the agency held out for five years, causing great distress to the family in question. With the added factor of widespread criticism of the legal fees incurred in litigation, we must ask ourselves what purpose such a position serves.

Medical negligence cases are grounded in already difficult situations: patients blindly trust in the ability and intentions of their physicians. When an issue arises, the trust on which that relationship was built is rocked to its core. Never is this more so than in obstetric cases when what should be the happiest day of a new mother’s life becomes a horrific nightmare.

And so, in a situation of great grief and loss, the finger of blame is pointed at the medical team she felt she could rely on.

It is understandable that the HSE, and indeed all State bodies, would seek to defend cases taken against them.

Folly of denial
After all, only those that are legitimate should be conceded. Indeed, if all cases against State bodies were to be conceded the public purse would be lighter than it currently is. However, when the question of liability is clear cut, why is a policy of "deny deny deny" still approved?

From my own experience as a barrister and having lectured trainee doctors for more than five years, it is clear to me that the driving force behind this policy is not the physicians but external powers such as insurers who are focused on the end result rather than the wounds that will be caused along the way.

Reading the recent sequence of cases where liability was denied up until the end, it is clear that neither the doctors involved nor the patients affected were served well by the process.

A study carried out by the University of Michigan showed that in medical negligence cases a determining issue was the way in which the patient was dealt with in the immediate aftermath of the incident.

Where information was withheld or given in such a way as to conceal the true extent of the mishap, the immediate effect was a polarising one where the patient felt that they could not in future trust that physician or the hospital staff.

Cornered patient
The patients surveyed felt that where this occurred they only had one option – to engage in a litigious and aggressive manner to get to the truth of the situation.

In contrast, where physicians were open with patients and admitted errors or issues that arose but, crucially, where they apologised in the immediate aftermath and engaged personally with the patient to establish how to address those issues, the number of patients that subsequently sued the hospital fell significantly.

This tells us a lot about human nature and perceptions of autonomy – particularly patient autonomy when they feel they are being shut out by their doctors.

In the Irish context, once a physician is sued they act under the instruction of their insurers, which means their hands are tied as to what they can or cannot divulge to a patient.

We have removed decision-making responsibility to a large extent from those directly involved and denied the parties the right to talk openly and honestly for fear that they may get sued.

The harsh reality, however, is that acting in this way is, to a significant degree, what is causing these institutions to be sued. Acknowledging the human side of the equation (the patient’s fear, the feeling of intimidation that can exist when a lay person interacts with a doctor, and the doctor’s own pride) could potentially resolve some of the issues early on.

Care and dignity
Ultimately the point and purpose of any healthcare system is to treat the patient with care and dignity, and to protect medical staff within the working environment.

Sadly we have lost sight of the front-line face of medical negligence and instead focus on legal concepts of liability and quantum which do not account for the human and very personal cost of such litigation.

Sarah Reid is a barrister, author and lecturer in medical law. She also teaches on the HSE GP scheme