Niamh Griffin: Adversarial system pits medics and patients against each other

Participants in cases involving alleged medical negligence find the process as distressing as it is lengthy. However, the current review of the process may propose changes

In January — six years after 76-year-old Freda Fox died after losing 17 litres of blood during surgery at St Vincent’s Hospital Dublin — her family settled a High Court action over her death. The settlement was made without an admission of liability.  Picture: Collins Courts

The opening months of this year have seen the conclusion of a number of distressing court cases linked to healthcare, with many watching left wondering why these cases often take so long and become so adversarial for everyone involved.

Is there or should there be another way?

One solution obvious to Ber Barry-Murray, president of the Mediators’ Institute of Ireland, is for more use of mediation instead of relying so heavily on the adversarial court system.

“I have seen across a table a consultant saying to a patient: ‘I’ve learned from you today.’ That is so powerful inside in a room,” she said.

“Or for a patient to say: ‘It meant something for me to hear from you that you tried your best.’ Now how much of that is missing in the five years that people are waiting to go through court?”

Ms Barry-Murray sees “so much potential” for the HSE to engage in mediation earlier in the legal process, rather than waiting for stressful court cases.

“Within a relatively short period, there is no reason why a family couldn’t be offered this opportunity of sitting down [at a mediation],” she said. “They mightn’t be ready, but they might be ready at some stage.”

The process also needs to be reassuring for healthcare workers.

“What you find is if there is a litigation pending, then clinicians might be afraid to come in, even though we have open disclosure and there is facilitation of apologies in the healthcare setting,” she said. “There are still real fears from clinicians around ‘if I give an apology, is that going to put me at risk in a court case’?”

In contrast, Ms Barry-Murray suggested that mediation can promote healing for both the patient or their family and the staff involved, by increasing the understanding between the two sides.

Outside of the medical arena, mediation is often successfully used, such as in the case of tracker mortgage scandals, she pointed out.

“A lot of the banks will use mediation and have used mediation really, really successfully,” she said.

The Mediators’ Institute of Ireland has found the key to successful mediation is voluntary participation. The mediator is independent of both sides, the process is confidential, and participants can decide what to accept.

Separate research from the Irish Commercial Mediation Association found almost 65% of cases from the Commercial Court referred for mediation were successfully settled.

Under the current system, mediation is available in healthcare cases, but it seems in reality this is often offered at the very last minute when a court date looms.

Barrister Doireann O’Mahony has acted for clients in a number of high-profile medical negligence cases.

She was counsel in a case concluded in January when St Vincent’s Hospital apologised to the family of Freda Fox, 76, who died six years ago after losing 17 litres of blood during surgery.

Ms Fox was admitted for a complex Whipple procedure, most commonly carried out to remove cancerous cells from the pancreas.

The five-hour surgery was done by doctors described in court reports as “trainee surgeons”. The settlement was made without an admission of liability.

Ms O’Mahony said that, in general, while mediation can be great for all involved, she sees two main issues. She echoes Ms Barry-Murray’s concerns around timing, saying it should be offered “sooner than just a few weeks before the assigned trial date”. Independence of the mediator is another issue, she said.

“The State Claims Agency, which indemnifies the HSE, will routinely propose a barrister who does defence work for the HSE to act as mediator — in other words somebody who is already on the payroll of the State,” she said. This is “unheard of” in Britain, she added.

The High Court heard that a complex procedure was carried out on Freda Fox by two trainee surgeons. St Vincent’s University Hospital apologised in court, as her children settled for €200,000 their action over her death six years ago.

On the other side of the fence, Irish Medical Council president Suzanne Crowe said delays in concluding litigation impact staff also.

“In Ireland, we have quite a litigious environment that we work in. There is a lot of litigation in relation to so-called medical malpractice or negligence through the court system and there is a fear of that,” Dr Crowe said.

“Patient care is the most important thing and doctors know that. There isn’t a single doctor who wants to deliver poor patient care.”

The council runs fitness-to-practise inquiries and a complaints process separate to the courts processes.

“I think the outcome is often quite unsatisfactory for the patients or the family making the complaint, or also the doctor,” Dr Crowe said of this. “Going into a disciplinary process, we have to be quite clear about what our aims are, and what people expect to get out of it.”

The council’s annual report for 2022 shows 27,520 registered doctors with complaints from various sources made against 1.25% of them. Among 301 complaints made that year, 101 were because of poor communication.

Five doctors had their registration cancelled following fitness-to-practise hearings, meaning they cannot work in Ireland anymore. This was an increase from one in 2021 and one in 2020.

Another four had conditions attached to their work, four were suspended, four were advised or censured, and three were fined, coming to a total of 20 doctors affected in 2022.

Dr Crowe said these complaints can take “months or years” to be processed depending on the situation.

“We often have to obtain medical charts from hospitals and that is incredibly time consuming,” she said. “And we have to get reports from experts, take that into account, and meet again and discuss the cases.”

Lynn Rocke’s husband Kieran Rocke and brother Michael Hogan said last month the family was ‘grappling with the profound loss of a beloved wife and mother’. Picture: Collins Courts

In another case which concluded last month, Galway University Hospital apologised and accepted failings in the care of Lynn Rocke, 48, who died of breast cancer in March 2020. The hospital’s apology was read out in the High Court when her family settled an action over her death.

Her brother, Michael Hogan, said afterwards: “The family of Lynn stand before you today with heavy hearts grappling with profound loss of a beloved wife and mother.

“The pain and grief are indescribable, made even more poignant by the circumstances surrounding her untimely passing.”

The hospital denied claims of an alleged failure to elicit an adequate family history of breast cancer and an alleged failure to recognise the likely genetic predisposition of Mrs Rocke to having a familial form of breast malignancy among other claims.

It is not always clear, even to the legal teams involved in this type of case, why it can take so many years to conclude. Orla Kelly, a partner with Cantillons Solicitors, has found in general across cases she has worked on over the past decade, families face years of waiting to find out what the medical defence to a case might be.

This is despite rules saying a defendant in a case should set out their case at the start of a process, stating whether they accept or deny liability, and giving details of their case.

Ms Kelly said sharing these details would then frame the process as being about what a patient might or might not be entitled to in terms of quantum, and what medical services and care they will need.

“The battle would be about quantum then, not liability — which is the way the rules were set up, and it was meant to happen,” she said, adding: “It rarely happens”.

Instead, patients often do not find out what the State’s defence against their claim is until just before a court case opens, in her experience.

“It’s literally stonewalling,” Ms Kelly said.

This adds stress to families who have already been through a trauma, and she pointed out adds to the costs for the State or medical institution.

“The only reason I can think of them for delaying it is they do wear the clients down. It is a war of attrition and sometimes people die before their case is resolved,” she said.

In cases where a settlement is made, it is also rare that liability is accepted and an apology offered, she said.

“If I had a euro for every time I had a client who said: ‘If they just apologised and explained what happened, I wouldn’t have gone down this route’ — they say it all the time.

“They say: ‘I just wanted answers, I just want to know what happened.’ ”

The issue of costs is also drawing attention now at Government level.

The Medical Protection Society recently published research indicating legal costs for medical cases in Ireland are among the highest in the world. This is off-putting for families and, from the Government’s point of view, increases costs for the State.

Data for 2022 shows €84.9m spent in legal fees linked to clinical cases alone that year, the State Claims Agency (SCA) said.

In January of last year, an interdepartmental working group (IWG) was set up to examine the rising cost of health-related claims and consider mechanisms to reduce costs.

This is chaired by former master of the National Maternity Hospital Rhona Mahony. They have met 13 times up to February since first meeting one year ago.

“The work of the IWG is at an advanced stage and it is expected that it will finalise its report shortly,” a spokesman said.

They are looking at risk management and other ways to reduce the chances of adverse incidents happening in hospitals and other healthcare settings in the first place.

Perhaps surprisingly, a public consultation only attracted 10 submissions, and 11 submissions from groups they consulted with directly.

SCA data shows the heavy financial cost of errors in clinical care. Their 2022 annual report shows almost twice as many general claims as clinical claims. However, the estimated outstanding liability for clinical claims is €3.86bn, compared with €1.1bn for the general claims.

A spokesman for the SCA said they “strongly favour” mediation where possible as an alternative to the court process. Some 34% of clinical negligence cases they concluded during 2022 involved mediation.

Responding to comments on the timing of when medication is offered, he said: “The SCA seeks to instigate mediation at the earliest opportunity in every suitable case, but mediation can only begin when both sides are in possession of all necessary information, to include expert evidence, in respect of an individual case; clinical claims are generally complex and gathering the necessary information can involve significant time lags.”

Schemes of settlement involving mediation are being managed for H1N1 (swine flu) claims linked to the medication Pandemrix, he said.

This is also the case for the Kerry Children and Adolescent Mental Health Services compensation scheme.

The SCA is aware of the rising cost of these claims generally and said there are a number of reasons for this. These include rises in the cost of legal fees, general claims inflation, medical inflation, and increased costs arising from additional heads of damages.

When a patient has suffered catastrophic injuries, costs are also affected by advances in care meaning these patients have an increased life expectancy compared to before, the spokesman explained.

In the meantime, while reform continues to be planned, the sad reality is some families and health staff will have spent St Patrick’s Day weekend steeling themselves for up-coming court appearances.

Litigation is 'a very lonely place' for patients 

It might not be surprising that doctors and patients have concerns about the medical litigation process, but barristers and solicitors do, too.

Barrister Doireann O’Mahony has represented patients or their families in a number of high-profile cases. She specialises in clinical negligence, with a focus on birth injuries.

Barrister Doireann O'Mahony says there is 'a perception that the HSE drags its heels'. Picture: Larry Cummins

Litigation is “a very lonely place” for patients or their families, with huge financial risks, she says.

“In an ideal world, there would be proper legal aid for victims of medical negligence, but, instead, we have a system whereby plaintiff lawyers take on these cases on a ‘no-win, no-fee’ basis, while those defending the HSE will get paid no matter the outcome,” Ms O’Mahony said.

Other challenges for patients include the assessment of injuries, including psychiatric, which will be done by their own side, and then repeated by the State’s experts, she says.

There is also a toll and trauma for doctors and an impact on morale within the health workforce.

“Nevertheless, it is still my belief that the truth-seeking of those brave people who take on the system is actually improving patient safety,” said Ms O’Mahony.

“And it is still my belief that the lessons to be learned from the litigation, which results when things go wrong, is one of the best means we have of preventing history from repeating itself.”

Mediation is not always beneficial, Ms O’Mahony adds.

The theory is that mediation helps avoid an antagonistic court process, although some experts believe it works best in parallel with a court case.

'When mediation works well, it is great, but in some cases there is little to be achieved, over and above what can be gained through meaningful settlement negotiations between both sides.

“For the costs of mediation to be justified, the process should be engaged in much earlier, and by that I mean sooner than just a few weeks before the assigned trial date.”

The recommendation for mediation is that the person doing the back and forth between the sides should be independent and impartial, Ms O’Mahony says.

Ms O’Mahony shares concerns around how long cases take to conclude, because “valuable opportunities for learning and implementing changes are lost”.

“In the intervening time, adverse clinical events can and do recur. If a case is well prepared, then there is no reason why it should take years to resolve.”

She says there is “a perception that the HSE drags its heels”.

“If we had case management in this jurisdiction, then this would perhaps be less likely to happen, but, as things stand, there is no real penalty for the HSE delaying matters, and so the delays continue,” Ms O’Mahony said.

“I wouldn’t go as far as to say that they are hoping the family will drop out, but in some cases there may well be a hope that people will get cold feet or lose the will to see things through to a satisfactory conclusion.”

‘There really are no winners in this situation’

Terms such as “painfully slow”, “brutal”, “isolating”, and “fear-inducing” are used by doctors describing the impact of legal action taken against them.

Such is the level of stress, a recent survey found that some are driven to suicidal ideation, with cases hanging over them for four years or more.

Irish Medical Council president Suzanne Crowe says 'there really are no winners in this situation'. Picture: Moya Nolan

There is growing concern about the impact of litigation on how doctors interact with patients and whether it is forcing some doctors to leave the profession.

Irish Medical Council president Suzanne Crowe said: “There really are no winners in this situation.”

In cases where a really significant error is made, the doctor could face a coroner’s inquiry and a civil case taken by the patient or their family.

In addition, the doctor has to face a disciplinary process (fitness-to-practise hearing) before the council.

“That is a huge amount of legal interaction to be dealing with while also perhaps still trying to work,” Dr Crowe said. “You can imagine the impact and the stress that would have on any individual and their family.”

Her solution is to focus on preventing errors, so more support for doctors and other medical staff and improvements in their work environment.

The council can support training and education, maintaining standards and giving guidance to doctors with the aim of reducing errors completely, she said.

“So those kind of situations that result in fitness to practise, we just wouldn’t see them because upstream we would have such high standards,” she said. “The health service employs terrific people. I’ve seen doctors go above and beyond for their patients so many times, that has to be acknowledged.”

Late last year, a new national framework for open disclosure was published and will apply to the HSE, private healthcare, and other health or social care providers. When fully in place, it is expected to standardise how staff and patients interact after an incident, with respect on both sides.

A working system of open disclosure would be “about trust”, Dr Crowe said, and a stronger partnership between patients and their medical team.

“Well over 40% of complaints that we see are due to communication,” she said.

An issue often heard in court or during coroner’s inquiries is that relatives or the patient did not know what had happened, or that no one took the time to sit with them and explain.

“Time of course is where we really run into trouble,” she said.

“Because we are so short in terms of staffing, taking time to spend with the patients, making sure you are listening to actually understand, explaining risks [can be hard to do].

“It is very important to provide a safe environment so any safety concerns can be escalated.”

Responding to requests from patients for meetings is one example, she says, of how better communication can help everyone.

“There is a lot we can do to support doctors to communicate really effectively with their patients,” she said of the council’s work specifically.

“And also to encourage patients and their families to communicate with doctors because it is a partnership.”

However, the current process in place is adversarial. An obstetrician in training was quoted in recent research describing the environment as “litigation-heavy, fear-inducing, undermining”.

The medic went on to say it “makes me reconsider my life choice almost every day”.

That analysis, written by Irish doctors and academics for the medical journal BMJ Open Quality last summer, called for urgent reforms.

They warned that the system is on an 'unsustainable trajectory'.

The group included staff from Cork University Hospital and Cork University Maternity Hospital.

Their analysis quoted anonymised staff discussing the impact of litigation, citing “profound numbness, guilt, and isolation”.

This has a knock-on effect for patients, they said, with doctors practicing what is known as "defensive medicine".

This can lead to patients receiving excessive or unnecessary scans and tests — just to be sure nothing is missed.

It can also cause doctors to shy away from doing potentially complex operations.

They also raised concerns about the rising financial cost of claims and warned that “significant financial resources” are spent on managing these claims instead of addressing the source of problems in the first place.

The SCA, which acts for the HSE, is estimated to need €3.85bn to manage and settle clinical claims, the working group said.

“This figure represents a 65.2% increase over five years since 2018 and a 270.2% increase over 10 years since 2013,” the group found.

Medical Protection Society medical director Rob Hendry says 'being involved in a clinical negligence claim can be brutal'. 

Earlier this year, the Medical Protection Society published findings showing concerns that litigation can drive medics to depression.

One described “suicidal thoughts”. Another said: “It was horrendous. I had to leave medicine after it.”

One big cause of stress is the length of time cases take. Medical negligence claims take significantly longer on average to resolve in Ireland than in Britain, they warned.

This also means it takes longer for patients in Ireland to receive compensation when awarded.

Their analysis echoed concerns around finance too, finding legal costs here “are among the highest in the world”.

Medical Protection Society medical director Rob Hendry said: “Being involved in a clinical negligence claim can be brutal for both patients and doctors in any country.

“In Ireland however, this is made much worse by a painfully slow process, longer than in any other country where we have members.”

On doctors, he warned, “some quit medicine which is the last thing we need”.

He echoed the concerns around wasted money, saying: “State Claims Agency data also shows an eyewatering €84.9m was spent on legal and expert costs in 2022, money that could be otherwise available to the HSE.”