State neglects its moral duty in its treatment of medical negligence cases
Rebecca Price and Patrick Kiely were wrongly told their unborn child had a fatal abnormality and Ms Price had an abortion as a result. The State conceded nothing until admitting liability just as their case was going to commence in the High Court. Picture: Collins Courts
When is the State going to stop the appalling treatment of litigants who have been the victims of medical negligence? Last week, Rebecca Price and Pat Kiely settled their legal action over the termination of a pregnancy based on incorrect advice.
The couple had been informed in March 2019 that their unborn boy had a fatal foetal abnormality. This turned out to be wholly incorrect. For a year they attempted to get the National Maternity Hospital and a private clinic to account for the error. When that ultimately failed, they launched a legal action to get justice. That finally arrived two years and three months after the catastrophic event.
While their experience involved existential trauma, the attitude of the State Claims Agency towards them will be familiar to anybody who has sought justice for medical negligence. The hospital, and the private clinic at which Ms Price underwent an initial scan, were indemnified by the State. This meant that the case was handled by the State Claims Agency.
Nothing was conceded. Every aspect of the claim was contested. The date for a trial was repeatedly pushed out. Eventually, a date of June 22, 2021 was agreed. Despite refusing to concede anything, the defendants didn’t present a defence. In other words, they were adamant they hadn’t done anything wrong, but slow to show how they came to that conclusion.
Progressing a legal action in this manner breaks no rules. If you don’t think you have a good case against your opponent, then push the trial date out into the future. Anything can happen in the meantime. Your opponent could die or become debilitated. He or she could get run over by a bus or go crazy. They will undoubtedly be further stressed at the prospect of an expensive and sometimes terrifying trial. That might give them food for thought, make them think twice about going through with it.
One might have thought, however, that such an attitude wouldn’t apply when you are the State, holding all the power and money, and your opponent is a citizen against whom a wrong, and sometimes a grievous wrong, has been done by an agent of the State. When this involves medical negligence, your opponent was actually a patient, in the care of the agency (usually a hospital) until the negligence occurred.
Rebecca Price and Pat Kiely were experiencing terrible grief while the defendants insisted they did nothing wrong for 15 months between issuing proceedings and the trial date. Two weeks before the scheduled trial date, in one of a series of motions, lawyers for the hospital told Judge Kevin Cross there would be a full defence.
On June 17, five days ahead of the scheduled trial date motion was held before the judge. One of the defendants, the hospital, wanted sight of a report in the possession of the laboratory where the scans had been processed. The lab had been brought into the case by the hospital as a co-defendant. The judge was told that this report was very important for the trial. He was also told that there was very little time in which the report could be read and an adjournment of the trial was desirable.
Another issue was a psychiatric report on Pat Kiely to assess any impact the incident had on him.
The hospital, represented by Emily Egan, had their report, but the lab, represented by Luán Ó Braonáin, wanted one of their own. Why exactly one psychiatric report would differ from the other, with both parties effectively on the same side, was broached by the judge.
“Your evidence on that would be the same as Ms Egan’s, I presume,” the judge said.
“Well, I don’t know that that’s so. But in any event…” Mr Ó Braonáin replied.
The judge intervened: “But presumably you would have a common interest on that aspect of the case.” he said.
“Well, there may be,” Mr Ó Braonáin said.
The exchange suggested that all the defendants were gearing up for hand-to-hand combat in court, parsing reports to the extent that his client needed their very own in order to fully defend the case. Later, Mr Ó Braonáin told the judge that a forecast of five days for the trial was very optimistic.
“Realistically, judge, I think that it’s more, it’s closer to a four-, hopefully not a five-week case.”
The following Tuesday morning, Judge Cross listed the trial to kick off at 2pm.
It never started.
Instead, negotiations got under way and, by 4pm. the hospital and clinic had admitted liability. All the build-up, the impression of a cast-iron defence, the girding of loins for a protracted trial, just went up in smoke. Within another 24 hours, the terms of the settlement were agreed.
All of the lawyers involved acted in a professional manner. Any lawyer worth his or her salt would have advised clients to conduct proceedings right up to the trial in precisely the way that was done. The course the whole thing took is more or less identical to that followed in most medical negligence cases, particularly ones in which major compensation is at issue.
This tactic has been in evidence as far back as the treatment of Brigid McCole 25 years ago and, in more recent times, against Vicky Phelan in the cervical cancer scandal.
Last October, in the , Liz Dunphy reported on three separate cases of serious medical negligence which all followed the same route.
The State Claims Agency has an obligation to protect public money and minimise exposure. But the opponents are also citizens, and the reason they are in court is because an agency which the State indemnifies has been negligent towards them. That negligence will usually render them vulnerable in some area of their life, whether it be their own physical, psychological, or emotional health, or that of somebody close to them.
Is it acceptable under those circumstances to needlessly load on the stress? To treat the afflicted citizen as you would an opponent whose welfare is none of your concern? To deny everything until the very last minute and then throw your hands up in the air as if it was all a game? Surely it’s time that some degree of morality was injected into the stance taken by the State when defending claims of medical negligence?
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