The past five days have seen a remarkable period of public in-fighting between the State Claims Agency, the Health Service Executive and HIQA which highlights the lack of openness and transparency in the way the State’s administrative bodies deal with the consequences of medical accidents when they occur.
On Friday 20th March, the case of Costello –v- the HSE came before the High Court in which the Plaintiff was represented by Ernest J Cantillon Solicitors. This was a medical negligence action arising out of severe injuries which Tadgh Costello, now aged 8, had sustained in the course of his birth in Kerry General Hospital in May 2006. Tragically, Tadgh suffered severe brain damage and as a result is confined to a wheelchair, cannot speak and needs twenty-four hour care. An interim settlement, under which a payment of €2.8m will be made by the HSE, was approved by Mr. Justice Kevin Cross. However, despite the ultimate settlement of this case serious questions were raised regarding the manner in which the Defence of the case was conducted on behalf of the HSE.
In the aftermath of the settlement Tadgh’s parents, Mary and Gerard Costello, issued a statement which was heavily critical of the HSE for unacceptably denying liability for Tadgh’s injuries for almost nine years and for causing the family intense suffering over that period. In Court, Mary Costello had confirmed that a consultant involved in the case had, after the birth, showed his remorse and cried in a private meeting with herself and her husband Gerard. “We were trying to deal with the grief of what had happened and for them not to admit liability added insult to injury," she told Mr Justice Cross.
When approving the interim settlement Mr. Justice Cross stated that, in the circumstances where the doctor who delivered Tadgh had admitted his mistake within weeks, it was strange and wrong that it took the HSE nine years to admit its liability. In a subsequent statement, issued on foot of the criticisms of the HSE’s delay in admitting liability in this matter, the HSE passed the blame to another State body – the State Claims Agency. In its statement the HSE maintained that it is the State Claims Agency and not the HSE which makes decisions in such cases. The HSE statement went on to say that it did not know how this case took so long to reach settlement.
The controversy surrounding the Costello case was quickly followed by the ongoing very public dispute between the HSE and HIQA regarding the content of a draft report prepared by HIQA into the quality and standards of service provided by the HSE to patients in the Midlands Regional Hospital, Portlaoise. An investigation into Portlaosie Hospital was set up over a year ago by former health minister James Reilly after five baby deaths in the maternity unit between 2006 and 2012. On Monday 23rd March, two days after the Costello case, it emerged that the draft HIQA report was extremely critical and placed some of the blame for the shortcomings at the hospital on senior corporate management in the HSE. It also emerged that, as a result of the content of the draft report, the HSE had threatened to injunct the publication of the report.
In response to these media reports the HSE published five letters which it sent to HIQA in relation to the draft report. These letters starkly reveal that the findings in the draft report would “shatter” the public’s confidence in the HSE. The correspondence also reveals that the draft report contains in excess of 250 adverse findings or inferences. A non-exhaustive list of identifiable persons affected by these adverse findings or inferences in the draft report includes Chief Executive Officers of the HSE, Board Members of the HSE and Secretaries General of the Department of Health.
As a result of the row between HIQA and the HSE, the Minister for Health, and indeed An Taoiseach, have had to intervene with Enda Kenny stating that whilst he wants to see the report published, two organisations using public money should not be in “court situations”. This unseemly public dispute is continuing to run its course and all the while it is patients and members of the public who are being left in the dark regarding the deficiencies which have been identified by HIQA.
The controversies over the past number of days regarding the Costello case and the HIQA report are, regrettably, not isolated examples of the lack of accountability regarding the shortcomings in our healthcare system and the manner in which lessons fail to be learned. In December 2013 when approving an €8.5 million settlement for a six-year-old child with cerebral palsy, Ms. Justice Mary Irvine also criticised the delay in the HSE admitting liability for the injuries suffered by the Plaintiff. It was, to say the least, “highly regrettable” that the HSE, for whatever reason, had delayed for some years before admitting liability, the judge said. She went on to state that 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.
In response to Ms Justice Irvine’s criticism of its delays in admitting liability, the State Claims 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. However, it is difficult to reconcile this with cases such as that of Tadgh Costello where it took almost nine years for an admission of liability to be made notwithstanding the almost immediate admission of the mistake by the delivering doctor.
The continuing lack of transparency and accountability in this regard only serves to increase the stress and trauma already being suffered by victims of medical negligence. As noted by Mary Costello when discussing the delay in admitting liability in her son’s case, she and her family had to risk everything they own in order to bring the HSE to task over Tadgh’s injuries. In addition, and as a direct result, Tadgh has not received the care which he needs over the past nine years and has missed out on the opportunity of earlier therapeutic interventions which can have a marked effect on the condition of young children when provided from the outset. This is clearly morally wrong and highlights the requirement for meaningful change to be implemented in the way our health system operates, both in terms of preventing avoidable accidents and in the way such accidents are dealt with once they occur. It should be unacceptable that families such as the Costellos have to take on huge personal financial risk in order to obtain justice having been failed by our Health Service. There has been recent publicity highlighting the costs incurred by the State in defending such cases but there has been shamefully little focus on the plight of the patients and their families who are caused significantly increased distress and trauma due to the lack of openness and honesty in dealing with the fallout of medical accidents. Thus victims are inevitably left with no option but to pursue costly litigation against well resourced state bodies and without any effective civil legal aid.
There are a number of proposals currently being considered regarding the introduction of measures which would add greater efficiency to the way medical negligence cases are dealt with before the Courts with a view to reducing the costs incurred. However, the reality is that a change of mindset and approach on the part of the HSE and the State Claims Agency would go further than all of the other proposed reforms combined in preventing families like the Costello’s, and so many others like them, from having to go through the cost, trauma and distress of litigation to hold the HSE to task for its failings. Whilst doing the right thing by those who have suffered as a result of medical negligence, and thereby ensuring that the same mistakes are not repeated, should on its own be enough reason to adopt such an approach this would also undoubtedly lead to significant financial savings on the part of the State by dramatically reducing the legal costs which are at present necessarily incurred.
In a recent appearance before the Oireachtas Committee on Health and Children, Minister Leo Varadker confirmed his intention to introduce legislation providing that doctors and health professionals will be obliged by law to tell patients where mistakes or accidents take place in their treatment. Of note, the Minister said it was the equivalent of a motoring “hit and run” for doctors and health professionals to fail to make such disclosures and to live up to their duty of candour. Sadly, the Costello case makes it clear that an admission by a treating doctor will not necessarily have any effect on the way in which the HSE and the State Claims Agency choose to defend any subsequent claims, particularly those involving catastrophic injuries where the victim is left with significant lifelong care needs. The recent controversy over the draft HIQA report into the failings at Portlaoise Hospital only serves to further illustrate the obstacles to be overcome at an administrative level, as much as at a clinical level, before the public can expect to benefit from full openness and transparency in our health system. Whilst the promise of the introduction of a legal duty of candour is obviously to be welcomed, it certainly should not be regarded as a silver bullet to cure all problems in the way in which our health system deals with medical errors when they occur. A change of attitudes at all levels is clearly required and a legal duty of candour is but the first step, albeit a very significant one, on the road to bringing about such a change
Augustus Cullen Law
24 March 2015