The following is from a presentation to the AVMA Conference by Michael Boylan on Thursday 22 April 2010 at the Radisson Hotel, Golden Lane, Dublin 7.
Various international studies have highlighted medical accidents as being a leading cause of premature death. There are various estimates of the number of medical accidents that occur with rates between 4% and 11% of total hospital admissions quoted in international studies. For example the Institute of Medicine of the National Academy of Sciences in the United States in the year 2000 published a major report indicating that 4% of patients admitted to US hospitals suffer an adverse outcome to treatment and that between 44,000 and 98,000 Americans die each year from preventable errors in hospitals.
This has been noted by our own Department of Health and Children, which has stated “although there are no available statistics for Ireland in this context it must be assumed that the rate of preventable error in Ireland matched those described above.”(1)
There are in excess of 4 million patients admitted to or treated by Irish hospitals per annum and making the assumption that 4% are injured due to medical accidents this would equate to 160,000 patients injured per annum in Ireland in hospitals due to medical accidents.
We don’t know the actual figure because no studies have been carried out. However, this number is consistent with the most recent figures from the State Claims Agency which indicate that 84,000 medical accidents were reported by Irish hospitals to the State Claims Agency in 2008 through their Star Web reporting system. It is, therefore, the case that many more people are killed or permanently disabled in Irish hospitals due to medical accidents than are injured in road traffic accidents.
In this context, the report of “The Commission on Patient Safety and Quality Assurance of the Department of Health” July 2008 entitled “Building a Culture of Patient Safety” states:
"Over the last two decades there has been growing support in the international literature for the concept that doctors should make full disclosure of medical errors to their patients. As well as enhancing patient safety by acknowledgement that an error occurred, it is also in keeping with the ethical commitment of honesty to patients."
“Failure to communicate effectively with patients following errors therefore damages the integrity of the profession. Studies show that openness can decrease the trauma felt by patients following an adverse event and that patients often forgive the medical error when it is disclosed promptly, fully and compassionately and action is taken to make sure it does not happen to another patient."
“The overriding principle accepted by the Commission is that patients are entitled to expect honest and open communication in relation to adverse events that may have caused them harm."(2)
This report has been fully endorsed by the Minister for Health who has given a commitment to implement its recommendations
In addition, the recommendations of the above Department of Health report are mirrored in the most recent Irish Medical Council “Guide to Professional Conduct and Ethics for Registered Medical Practitioners” published November 2009. Paragraph 18.3 of the said Code of Conduct on ethics states:
"Patients and their families are entitled to honest, open and prompt communication with them about adverse events that may have caused them harm. Therefore you should:"
- Acknowledge that the event happened
- Explain how it happened
- Apologise if appropriate, and
- Give an assurance as to how lessons have been learnt to minimise the chance of this event happening again in the future
However, taking both the Department of Health and Children and the Irish Medical Council documents into account, delegates may be surprised to note the contents of the December 2009 Clinical Indemnity Scheme Newsletter published by the State Claims Agency which states:
"However open disclosure is not and should not be an admission of liability …. those who are engaged in communication in accordance with an open disclosure policy must not agree at any time that they are liable for any harm caused to the patient or that they were negligent; They must not attribute liability to a fellow health care professional or state that he/she caused harm to the patient or was negligent and finally must not state or agree that the particular hospital/health enterprise was liable for the harm caused to the patient or was negligent. All communication must focus entirely on the stated facts, i.e. what is correct and not what is opinion or interpretation".
The newsletter went on to state that over the coming months the State Claims Agency intended to publish, in terms similar to that published by the National Health Service litigation authority, guidance in relation to the topical of open disclosure which it intended to ultimately send to all health enterprises and hospitals covered by the Clinical Indemnity Scheme. I am unaware that to date any such guidance has been sent.
There appears to be a clear difference of approach and emphasis, if not indeed outright conflict, between the approach being promoted by the Department of Health and the Irish Medical Council and the approach being adopted by the State Claims Agency. It is, quite frankly, difficult to reconcile fully the differences in approach.
However, it is perhaps easier to understand the approach being suggested by the Clinical Indemnity Scheme Newsletter when one understands that the State Claims Agency has been established under Statute and is statutorily obliged to minimise the State’s exposure to claims for compensation.(3) Thus, the State Claims Agency sees its primary, if not sole responsibility, to minimise the financial exposure to the State as a consequence of medical accident claims.
- In this context it is therefore not surprising that there is a huge deficit between the policy of “openness” being suggested in the publications from the Department of Health, the HSE, and medical organisations and how those “policies” are implemented on the ground, in hospitals and medical centres across the country.
- To examine this difference – and the chasm between policy and practice – I will present a number of case studies. These case studies highlight instances where obvious medical errors occurred and in which liability should have been admitted. They are typical of many similar cases where liability has not been admitted openly with the consequential escalation of legal costs and, more importantly, continuing distress and trauma to patients and their families. Similar case studies are replicated, many times over, and involving patients from all parts of Ireland.
CASE STUDY 1 – Leo Conroy (a minor) –v– The Rotunda Hospital
The first case study involves Leo Conroy, a minor, versus the Rotunda Hospital.
Leo was born on the 20 March 2003 in very poor condition at term. He was effectively still born and had to be vigorously resuscitated (oxygen and adrenaline) for 20 minutes. He was severely hypoxic and suffered severe hypoxic ischaemic injury to his brain leading to Cerebral Palsy.
The case made on Leo’s behalf was that in the hours prior to his birth the CTG monitor which was recording his heart rate indicated that he was suffering from ever increasing and severe foetal distress. This was not acted upon by the attending midwives or doctors. The CTG trace, the pattern of contractions and other clinical signs were classic symptoms of developing placental abruption, which in fact occurred and caused injury to Leo acutely just before he was delivered.
It was Leo’s case that had these various strong indicators been acted upon by the attending midwives and doctors he would have been delivered safely by caesarean section much earlier and without any injury. Leo’s parents initially went to their local solicitor who tried to progress the case. These solicitors wrote a letter of claim in early 2004 to the hospital/State and this produced a denial of any responsibility from the hospital’s solicitors.
Subsequently, Leo’s parents instructed our firm and proceedings were commenced in 2006. A full defence was delivered by the hospital denying any wrong-doing in late 2007. Eventually, the case came for trial on 22 April 2009. At this stage liability was still being denied by the hospital and the State, notwithstanding the fact that expert reports disclosed that they had an extremely weak case. Finally, on the day that the case came for hearing an attempt was made by the hospital to settle the case. Ultimately, the case settled without admission of liability for a sum of €5,250,000.00 plus costs.
However, by this stage it had been necessary to engage in excess of 25 expert witnesses to prove all necessary matters, many brought in from the UK and Canada. The family was placed under enormous stress over the years in which liability had been vigorously denied. If the hospital and State had adopted a more reasonable and efficient approach to the case it could probably have been settled years earlier than it was. Enormous legal costs could have been saved and the distress and strain caused to the Conroy family would have been avoided.
It has to be emphasised that any reasonable offer of settlement made in an infant case has to be put before a Judge of the High Court for his approval. There can be no question of the hospital or State taking a view that an early settlement offer would not be worth making as it would be rejected by the infant’s legal advisors.
This begs the question as to why the State, which was willing to make the full offer of fair compensation for the injury caused, chose to wait five years before settling the case.
CASE STUDY 2 – C –v– Health Service Executive
The second case study relates to a case in which a patient suffered a fatal heart attack as a result of wrongful misdiagnosis of chest pain and discharge from hospital. This case was brought by the patient’s widow and her dependent children. In this case, the patient attended an A&E department in June 2004 with complaints of chest pain. His referral note from his GP stated that there was a strong family history of cardiac disease which had caused the death of two of his elder siblings. At the time of referral to hospital he was 39 years of age.
Without performing any ECG or blood tests the patient was wrongly diagnosed by a Junior A&E doctor as suffering with atypical chest pain and discharged back to the care of his GP. Unfortunately, he died at work some six months later from ischaemic heart disease (inadequate flow of blood) associated with systemic atheroma (plaque on his artery walls).
In simple terms a case was put forward that this patient should not have been discharged by the A&E doctor without a full examination given the family history and the presenting complaints. There was strong expert evidence obtained by the family to suggest that had appropriate investigations been performed it would have been disclosed, within a matter of weeks, that the patient had significant coronary artery disease. This would have lead to him being prescribed and administered statins. Along with diet and exercise these would have controlled cholesterol and, in all probability, avoided the fatal heart attack six months letter.
A letter of claim was sent by a local solicitor but no admission of liability was forthcoming. In 2007 our firm was consulted by the family and we secured the expert advices in A&E medicine and cardiology to support the case. However, the hospital/HSE did not admit responsibility and filed a defence to the proceedings denying all wrong-doing. This was despite the fact that the HSE’s own expert reports, disclosed to us, stated that there had been negligence and that the case was indefensible. It was only four days before the trial that the hospital admitted fault and settled the case for €400,000.
What is particularly shocking about this case is that it was defended for years despite having no expert who would support such a defence. Furthermore, the State apparently also engaged private investigators in a vain attempt to prove that the widow was now in a new common-law relationship with a man who could support her and thus the claim for financial dependency as a result of her husband’s death was minimized.
Not only did the manner in which the State defended the case serve to dramatically increase legal costs and add to the widow and children’s trauma but it was also arguably a breach of the Rules of Court, displaying questionable ethics, to continue to deny all allegations of negligence months after receiving expert medical advice which confirmed that the case was indefensible.
CASE STUDY 3 – Arron Trimble (an infant) –v- The Health Service Executive
The final case study involves an infant, Arron Trimble, who suffered severe oxygen deprivation at the time of his birth at our Lady of Lourdes Hospital, Drogheda, in March 2004. This resulted in catastrophic brain injury and he was diagnosed with quadriplegic Cerebral Palsy and global developmental delay. Tragically, he suffers from up to 40 seizures per day, requires constant suctioning of his airway to clear secretions and render it safe, and requires to be tube-fed.
He is, in effect, totally dependent on others for all activities of daily living and his injuries have had a devastating impact on his own ability to enjoy life and indeed on his family’s quality of life.
Seven months after the birth in October 2004 Arron’s parents met with members of the hospital’s risk management department who told them that an internal hospital enquiry into the management of the mother’s labour was taking place.
A report was eventually given to the parents in June 2005 and it identified numerous serious failings in care which caused or contributed to Arron’s injuries. Notwithstanding this report liability was not admitted by the hospital and despite several follow-up letters from our firm seeking admission of liability the HSE still refused to admit liability. Legal proceedings were issued in late December 2005.
Liability was not admitted until April 2008 – this was 34 months after the hospital’s own damning report had been given to the family. By this stage, a trial date had been set for June.
In April 2008 liability was finally admitted and the case was then to proceed to trial as an assessment of damages only. There was still no attempt being made by the State to settle the case. The case came on for trial in late June 2008 and settled on the third day for damages of €4,350,000 plus costs.
The most striking aspect of this case was that the despite the hospital and HSE being aware of the failures in care, and despite their own report highlighting these failures being produced in June 2005, no attempt was made to settle the case for a further 3 years i.e. until 24 June 2008.
The HSE was well aware that Arron had catastrophic injuries and was suffering 30-40 seizures per day. The HSE was also aware that Arron required round the clock care. The strain of this care took an enormous toll on Arron’s parents which was added to by the worry of legal proceedings. It was only in April 2008, when liability was finally admitted, that the family was able to raise funds by way of a bank loan to employ desperately needed outside paid carers to help cope with Arron’s care.
In addition to the horrendous impact that the State’s delay in admission of fault had on the family, these failures also dramatically increased legal costs. The costs would have only been a fraction of the final total had the State admitted liability when they first became aware of the medical errors.
- In so far as medical accidents are concerned there appears to be a vast difference between the policy and ethics of the HSE and doctors and the actual practice on the ground.
- The very laudable principles set out in the various reports and ethical guidelines bear no relationship to how the cases are actually defended by hospitals and the State Claims Agency.
- There needs to be a change in both attitude and practice of the HSE administrators, clinicians and the State to medical accidents.
- There appears to be no joined up thinking. The State Claims Agency sees its paramount duty to minimise the State’s liability to pay financial compensation to persons taking actions against the State, regardless of its human impact on patients and regardless of whether or not the clinician involved knows that he/she has committed a culpable medical error.
- Clearly there is an inherent conflict between the State Claims Agency’s statutory obligations to minimise financial exposure to the State and the other duties of the State to its citizens including patients injured due to preventable error by servants or agents of the State.
- Why should doctors and other health care professionals whose salaries are paid for from the public purse not have a positive legal duty of candor to their patients? Why shouldn’t the injured patient be told about medical errors that injure them particularly when the clinician is often best placed to know whether or not he/she is culpable?
- There is an inequality of resources available to patients as compared to the resources available to the State. The State usually has a panel of experienced lawyers and experts available to defend cases and the necessary financial resources to fully investigate and defend medical accident claims whereas the patient usually has very limited resources.
- There is a dearth of experienced lawyers on the patients’ side available to pursue such cases. This contrasts sharply with the specialist panel of lawyers available to the State to defend these cases.
- There is a desperate shortage of Irish doctors willing to give honest objective opinions for Injured patients and hence the necessity to go abroad, usually to the UK, to seek such experts at consequential extra cost and delay.
- There is no legal aid available to injured patients to pursue cases. Hence it is often difficult for patients to secure legal representation to pursue a genuine complaint as it is difficult to get a lawyer who is willing to take a case on a “no-win-no-fee” basis in the knowledge that the litigation will be protracted, costly and with an uncertain outcome.
- Personally, I wholeheartedly support AVMA’s campaign to have incorporated into Irish law a duty of candor.
- Building a culture of patient safety report of the Commission on Patient Safety and Quality Assurance, Department of Health and Children, July 2008
- para 4.3.6 at page 81 of the report
- See Section 8(3) of National Treasury Management Agency (Amendment) 2000 which states: “the agency shall manage delegated claims and counterclaims in such a manner as to ensure that the liability of the state authorities in relation to such claims …. are contained at the lowest achievable level.”
22 April 2010