“There was a very genuine complication in the case in question, it involved an unusual bladder injury associated with a hysterectomy. The patient ended up with problems. The issue in litigation was whether there was something wrong done or not,” says Prof Greene.
In the end, the case was settled without blame, but initially, he was angry and upset.
“I was angry with the court system. I went in there thinking the evidence would win out but that’s not what happened. I was still angry on the train on the way back from court in Dublin.
“And then a switch went off in my head. I knew what I did was the right thing for the patient, that I did the right surgery and the complications couldn’t have been foreseen. I told myself that I need not be afraid to practice medicine. I decided I needed to have a positive response.”
In the professor’s case, the procedure that resulted in injury was carried out with the appropriate consent. The injury itself was a rare occurrence as shown in a review of the medical literature. And although Prof Greene felt the weight of evidence was stacked in his favour, it panned out differently in court. He believes cases such as his are not necessarily won on the strength of the evidence but by the ability of the lawyer to win the heart and mind of the judge.
Prof Greene, who is the director of the National Perinatal Epidemiology Centre (NPEC) and professor of obstetrics at UCC, feels many doctors struggle to respond positively to litigation. He says that typically, the experience is life-changing, often leading to loss of self-esteem and confidence as a doctor.
Before Christmas, Prof Greene took part in a seminar in UCC on Adverse Events in Healthcare: Medico-Legal Challenges and he spoke of how litigation can leave doctors in “a lonely place”, where they are often made to “feel inadequate”. There’s also the damage to reputation and disruption to work.
Studies have shown the effect of being sued often leads to doctors ordering more tests, making more referrals, and increased prescribing. One third of doctors either quit medicine or consider quitting when they are sued. Others reduce hours, take early retirement or feel emotionally distant from their patients.
In fact, Prof Greene feels litigation potentially makes medicine dangerous. Where previously the clinician’s focus was on his patients’ wellbeing, he is now pre-occupied with legal self-protection and begins to practice defensive medicine.
“Litigation can make matters worse with doctors becoming so careful that they don’t potentially do the right thing. It has the potential to make a doctor less safe,” he says.
This is what American author Carol Turkington calls “litigaphobia“, an exaggerated fear of lawsuit that cripples practice and does the patient a disservice.
Prof Greene believes the way the court system is set up, many families who have genuine cases of medical negligence get no assistance while others should never have ended up in court. He says maybe it’s time to look at the New Zealand system of “no fault” compensation for medical injuries. Here, litigation has been replaced with administrative compensation systems in which patients who sustain an avoidable medical injury can apply directly, without a lawyer, for compensation. Such systems allow compensation to the injured parties without finding fault or negligence.
Prof Greene says here at home, many families feel they haven’t been looked after and that their only way to get answers is to go to court. But he feels this could be addressed if hospitals were open about what happened.
“If hospitals could just say ‘We missed the opportunity to prevent this happening. This is what we learned from it’, I think a lot of families would be glad to hear that. I think the majority of patients and their families want to know what happened.”
Prof Greene is in favour of duty of candour — that the HSE and doctors be legally obliged to candidly tell a patient what went wrong — or open disclosure. He says this is encouraged at CUMH where the service approach is a “no blame culture” and “open and honest management of complaints”. He says duty of candour is widely subscribed to in the USA and in Chicago they’ve gone as far as hospitals fining their own doctors if they fail to own up to mistakes.
“We absolutely have to move to a situation where we are open and honest with patients and where we tell them where we went wrong and where we apologise if it’s appropriate.
“We must not be afraid to say sorry. Whether it goes to litigation or not is beside the point.”