The State Claims Agency, the organisation that manages personal injury and property damage claims against the State, tends to go about its work quietly, without impinging much on the public consciousness. But recently it has found itself in the spotlight over its handling of sensitive medical cases.
Its entanglement in the controversy over medical expenses for those suffering from a sleep disorder linked to the human swine flu vaccine follows serious criticism on a separate issue from a High Court judge recently.
Ms Justice Mary Irvine, when approving an €8.5 million settlement for a six-year-old child with cerebral palsy, described as "highly regrettable" the HSE's five-year delay in admitting liability for the injuries suffered due to negligence in the child's birth at Waterford Regional Hospital. She said it was the second case before her in the same week where the HSE had delayed in admitting liability, causing additional stress and fear for the children and families involved.
The State Claims Agency has strongly defended its handling of each of these cases. It says it never advised the Health Service Executive to stop paying for medical cards, scans and visits to private consultants for narcolepsy sufferers who were suing the State. Rather, it told the HSE to stop making ongoing out-of-pocket payments and said the individuals should, "as happens in every comparable litigated case", include these expenses as part of any damages claim.
Responding to Ms Justice Irvine’s criticism of its delays in admitting liability, the agency said its policy was to admit liability when the expert medical evidence indicated there had been a breach of duty in a particular case. The commissioning of that evidence could take considerable time, especially in complex cases that ranged across different fields.
Clearly, the agency can find itself in difficult situations, having to strike a delicate balance between the requirements of a thorough investigation of claims and the sensitivities of families who have been through extremely traumatic events. After all, the agency’s objective, as set down in law, is to manage claims so as to ensure the State’s liability and other expenses are “contained at the lowest level achievable”.
On delays in admitting liability, some believe the problem is a system where in many cases doctors deny everything – an approach that seems to have its origin in the assumed right against self- incrimination. This is the view of solicitor Ernest Cantillon, who has represented patients in high-profile cases. He points out that the obligation to be candid, as set out in the Medical Council guidelines, is welcome for both medics and patients, but believes the best way to change this defend-and- deny approach would be to introduce legislation that would sanction doctors and the HSE for failing to report adverse events.
Patients' advocacy groups have also been calling for more candour from the HSE, hospitals and medics, saying the adversarial approach taken by the health system when health professionals' mistakes result in injury or death prolongs the pain for victims.
It may also result in higher than necessary costs to the taxpayer. Dr Timothy McDonald, chief safety and risk officer for health affairs at the University of Illinois, told a recent conference in Dublin that a duty of candour might seem counterintuitive from a financial viewpoint. But since a similar system was introduced in Illinois, malpractice expenses had dropped by $22 million over three years and claims had fallen by up to half. "Patients are less likely to sue when a hospital is forthcoming and transparent," he said.