The case of Jack Tyner should be a wake-up call about medical mistakes but probably won’t be. Jack was a 19-year-old jockey who was injured in a fall in a point-to-point meeting in Dungarvan on February 2, 2011.
He was taken to Cork University Hospital following the accident. His family were led to believe he would only be there for a few hours. Unfortunately, he wasn’t and died in hospital five days later. His family suspected there had been issues around his care.
In the absence of a full and proper explanation from the hospital authorities, they felt their only option to access the truth was to initiate a legal action. That arrived at a conclusion last Monday week, October 7, eight-and-a-half years after Jack’s death. In the end, the HSE apologised and agreed a financial settlement with the bereaved family.
The HSE accepted ‘causation’ but not ‘liability’, which in effect means it accepts there were failings in their care but doesn’t accept that those failings led directly to his death. In the Irish Examiner court report, it was pointed out that had the case gone to trial, the plaintiff would have called evidence from a British-based neurosurgeon alleging that the risk of death ordinarily from a fall such as that suffered by Jack was, at most, 9%.
Outside the court, Mr Tyner’s mother Mary spoke about what the family had been put through: “Had Jack received early intervention and the appropriate care at CUH, he would be with us today.
“We accept the HSE has apologised for their part and their failings. In our view, however, lessons cannot be learned unless the professionals accept their part at an early stage as opposed to years of unnecessary litigation.
One obvious lesson from this tragic case is that mistakes happen. Doctors and medical staff are susceptible to human frailties. Unlike most of us, their mistakes can have life-ending or lifelong consequences. That is the occupational price of working in a sector in which the objective is to heal.
The second and related lesson is that the mistake in this case was greatly compounded by the response to it from the medical staff and their employer, the HSE. As Ms Tyner said outside the court house on the day of the settlement: “If they just stood up at the start and told us, ‘we made a mistake, things went wrong’, we would not have had almost eight years of torture trying to get answers.”
In this case, those in the business of healing actually did further harm and as such, arguably, breached the spirit of their Hippocratic oath. Of course there was no intent to do harm to the bereaved family, but great harm was done as a consequence of how the mistake was dealt with.
The case was typical of the instinctive refusal to admit to any error in the medical world. That instinct, for example, was at the heart of the cervical cancer scandal. Once it was discovered that 221 women had been wrongly given the all clear, nobody thought to inform them, because that would require admitting to the errors.
In a recent radio interview, Gabriel Scally, who investigated the cervical cancer scandal, pointed out that there isn’t a doctor alive who doesn’t make a mistake.
“The legal system takes medical error and turns it into an injustice and tends to resolve it through money. The system is not fit for purpose,” he told RTÉ’s Drivetime.
There will always be situations that can only be properly resolved through monetary compensation, but in the prevailing culture the legal route is one of first reference rather than last resort. Mr Scally correctly noted that in many instances when something has gone wrong, the remedy could be far more benign if only humanity and compassion were part of the system.
“They want to know what went wrong, why it went wrong and they want somebody to say sorry who really means it,” Mr Scally said of those who have been the victims of mistakes within the system. “And they want to be reassured that the error will be looked at and assured that it won’t happen to somebody else.”
Instead, we have the default position of owning up to nothing, compounding the mistake and treating a former patient or bereaved family as an opponent rather than citizens entitled to, and desperately in need of, a humane and compassionate response.
The instinctive defensiveness is not confined to mistakes that can lead to fatality or serious illness. I am aware of a case where cancer was diagnosed, but subsequently and correctly disputed by a second opinion. The consultant who made the misdiagnosis subsequently went to great lengths to disown his mistake, despite there being no question of legal action or any complaint against him.
The prevailing culture prompts professionals to never admit to anything, never utter anything that could be used against them, to never let on. Some in the medical world will say that it’s is all down to the litigious nature of Irish society. There may be some truth in that. Currently, there is a growing acceptance that a litigious culture is central to problems over the rising cost of insurance premiums.
One recent study found that more than 90% of people attending at the Mater Hospital in Dublin for whiplash injuries discontinued their treatment when the litigation was completed. That suggests the whiplash was primarily an exhibit for a legal action rather than a genuine problem.
Does the legal business foster this culture? Is the public in general conditioned to run to the law immediately once a person has been the victim of any mishap? Do those at the upper echelons of healthcare take a view that everybody is a potential litigant and must therefore be treated as an opponent rather than a victim requiring a compassionate response?
If the answers to these questions are in the affirmative then the matter requires urgent debate at national level. With regard to medical mishaps, the culture of defensiveness, prevarication, and legal aggression is one that must be changed, either in conjunction with, or separate to, any debate on litigation. As things currently stand, both the public and health professionals are ill served by the system.
Those who are adversely impacted by mistakes find that their pain is compounded, and consequently their confidence in the HSE, which oversees the nation’s health, drained. Professionals in the system find themselves cast in a role that is a long way from what they signed up for.