The Government recently announced proposals to establish a new Expert Group to consider alternative mechanism to the court process for resolving clinical negligence claims in a more sensitive and timely manner than the current court system.

The Group will be chaired by High Court Judge, Mr Justice Charles Meenan and will provide an interim report after three months and a final report within a six month timeframe from its establishment date.

However, from our expertise in the area of Medical Negligence we would suggest that a complete overhaul of the system is unnecessary and premature given the existing mechanisms which the government can introduce straight away, and without real cost to the state. These mechanisms include open disclosure, mediation and pre action protocols.

The recent cervical smear debacle and the ordeal which Vicky Phelan and other survivors were put through, pushed this issue front and centre. Clearly an

St Columcille’s Hospital in Loughlinstown has asked 65 patients to return for a repeat colonoscopy. This review was ordered after it was discovered that between November 2017 and April 2018 65 patients received incomplete colonoscopies.

A colonoscopy is an internal examination of the interior lining of the bowel. This procedure is used in the diagnosis of bowel cancer and other conditions. Bowel cancer is the fourth most common cancer in Ireland, with 2,700 people here being diagnosed with the disease each year. Therefore it is obviously imperative that colonoscopies are being performed correctly and to completion stage.

In order for a colonoscopy to be complete there must be a photographic record of the end section of the bowel. The 65 patients in question did not have such photographic evidence, thus rendering their colonoscopy procedure incomplete. As a result, in the interests of best practice, St Columcille’s Hospital decided to re-scope the 65 cases

Dr Garret Cullen, Clinical Lead for Endoscopy at Ireland East Hospital Group emphasised that the review process was a precautionary measure and that the risk to patients was low:

“We acknowledge that patients may be anxious about being called for an appointment but I want to reassure them that this is purely a precautionary measure, appointments are currently being scheduled and we expect this process to be complete within four weeks.”

The doctor who carried out the incomplete colonoscopies was employed in a sessional basis and is no longer employed by St Columcille’s Hospital.

If you have any further queries, please contact any of the following partners from our Medical Negligence Team:

Joice Carthy

Jamie Hart

Neil Kidd

d understandably there is public anger and upset at the stance the HSE has taken in relation to how it handled these cases and, in particular, their policy of “deny and defend”.  It is likely that Government see this proposal as an opportunity to deflect from recent negative headlines.

There is nothing new in political kite flying and the issue of changing the system. The Department of Health established an advisory committee in 2004, which included specialists in the medical, legal, rehabilitation, and obstetrics fields.  The committee however failed to produce a final report.

At the moment we do have a model: the courts. With the introduction of key changes: a mandatory duty of candour, widespread use of mediation, and pre action protocols, the time it takes cases to be completed would be drastically reduced and the level of angst for caregivers and patients minimised to the maximum possible extent. Furthermore, any complete overhaul of the system which denies would-be litigants access to the courts would, in all likelihood, be unconstitutional and would infringe their basic Human Rights.

What any lawyer wants is a happy client. Clients want answers and to get to the truth of what has happened to them. The duty of candour is a significant part of this, however there are still going to be occasions where cases are taken forward. This is where you are looking at streamlining the litigation process.  We should use the legislation as it stands with the introduction of pre action protocols, provided for in the Legal Services Regulations Act 2015 and simply awaiting secondary legislation to flesh out the detail.  

Putting patients first has to be at the heart of any meaningful review.  Instead of spending months listening to experts, the government can take action now if it has the courage to match its ideals.  It should look at mechanisms available to them already in the public domain.

Joice Carthy

Managing Partner

30 August 2018

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