Barrister calls for overhaul of medical negligence cases, claiming 'some die waiting' for hearing

Many people die waiting for their cases to be heard as the process takes so long, Doireann O'Mahony BL, said.
Barrister calls for overhaul of medical negligence cases, claiming 'some die waiting' for hearing

Doreann O'Mahony BL says simple changes could transform the stress and trauma surrounding medical negligence cases.  Picture: Miki Barlok

A barrister who specialises in medical negligence litigation has called on the State to introduce a raft of reforms to save time and costs in the legal process as new figures show €315m was paid out by the State Claims Agency (SCA) last year in damages and legal costs.

Doireann O’Mahony, BL, said four plaintiffs she was representing have died since last March while waiting for their cases to be finalised, through no fault of their own or their teams. Their claims effectively died with them.

“Those with cases waiting to be heard remain worried for years about what will ultimately happen,” she said.

Many become anxious, frustrated, disillusioned or even get cold feet. Some die waiting for their cases to be heard. 

"An apology is often the only thing motivating people to sue, yet it has to be dragged out of the defendant after a long, tortuous and distressing journey, which only adds to the hardship already suffered.

“All too frequently an apology is only given on the eve of a trial, if at all.” 

She made her comments as new figures show that the SCA paid out €314.72m arising out of medical negligence cases last year, including €245m in damages.

Ms O’Mahony said it is easy to sit back and complain about such costs but people must remember that behind every payout is the injury or death of a person, which in many instances could have been avoided.

A number of key procedural reforms could streamline the process, while still ensuring a fair determination of claims, she said.

What patients want most of all is an explanation for what happened, she said, and where appropriate, an apology, along with an assurance that lessons have been learned and changes made so that what happened to them will not happen to somebody else.

But she said the process can be dragged out for years, with defence teams adopting a “hostile approach”, forcing the injured patient into a years-long process of trying to prove there was negligence, with the relevant medical staff being kept at arms length from the process, and with mediation often introduced at a very late stage, sometimes just weeks before trial.

One of the single most important reforms would be the introduction of lay witness evidence at the outset of a medical negligence trial, she said. Mediation should be facilitated earlier in the process to minimise cost and distress too.

She said:

Medical mistakes will often be accepted if freely admitted and frankly explained but such opportunities, unfortunately, are rarely availed of.

“If a way could be found to bring the desirable level of openness and communication into legal proceedings, and in particular into the denial and admission part of pleadings, a great number of issues otherwise litigated, surely would become non-issues, with very considerable savings in both time and costs. Positive pleadings should be mandatory on both sides.” 

She sets out her arguments in the second edition of her book, Medical Negligence and Childbirth, which will be published on Thursday.

It features contributions from 17 clinical and legal experts on a range of issue, including those which have emerged in relation to termination of pregnancy following the repeal of the 8th amendment in 2018.

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