The adversarial nature of medical negligence cases can result in "destructive emotional impact" for those involved, re-traumatisation for the plaintiff, and prompt medics to develop "defensive" medical practices.
The findings are contained in new research which highlights "significant shortcomings" with medical negligence litigation in Ireland, arguing it is a system badly in need of wider reforms.
The research was written by Dr Mary Tumelty, Lecturer in Law at the School of Law in University College Cork.
It features input from 12 barristers who specialise in medical negligence litigation, two patient support groups (Patient Focus, and Patients for Patient Safety), and three Irish medical practitioner professional bodies: Royal College of Surgeons, Ireland; Royal College of Physicians, Ireland; and the Irish College of General Practitioners(ICGP).
It pinpoints a string of issues with the current system, such as the length of time it takes to have cases resolved and how, even then, there can be little cause for celebration, even for those who win.
According to the paper, the adversarial nature of litigation makes the process conducive to ‘a protracted, contentious, emotionally draining and expensive legal battle’, and doesn't always deliver on "the extra-legal goals of plaintiffs", such as apologies.
While just 3% of medical negligence claims in Ireland are contested in court, the findings uncovered that the adversarial approach adopted means that efforts to resolve claims "only occur once a trial date has been obtained".
"Not only does this do little to reduce the length and cost of litigation, it can also cause and compound emotional harm. This was noted by the majority of participants."
The patient advocacy groups referred to the "wearing down" of patients, who find the process "excruciating".
A barrister said: "I’ve never seen a plaintiff [celebrate] when they win. Actually, they usually start crying when they win the case."
The research suggested that "arrested healing" was "particularly problematic", with people holding onto anger rather than facing grief, and that the process can have a big impact on other family members who are not directly involved.
One ICGP member said: "It’s destroyed some people ... they’ve left medicine ... over the litigation and the length of the litigation ... because it can drag on for years."
Another said: "[The adversarial environment is] certainly creating an attitude amongst doctors to say ‘basically, if I was starting again I wouldn’t go into medicine’, and I’ve heard older doctors say ‘I hope my children don’t go into medicine’. Whereas, thirty years ago they would have encouraged that."
According to the study: "The findings of this research indicate that litigation or fear of litigation can result in medical practitioners employing defensive medical practices."