‘Deny and defend’ a trauma for all - Medical negligence cases

NEW standards being adopted by the Health Service Executive for perinatal death are a welcome recognition that when miscarriages and post-pregnancy loss occur the family of the child needs to be dealt with in a caring and sensitive manner.

An 84-page document published yesterday by the HSE outlines how bereavement care must be integrated with a hospital’s overall medical and clinical engagement with parents. It advises that mothers and families need accurate information given in a sensitive and supportive manner.

That sounds like a very responsible and reasonable approach in dealing with such tragic deaths, and let us hope that those caring words will be followed by equally caring action and not become another unfulfilled pious aspiration.

It is difficult, though, not to be somewhat sceptical of the HSE’s intentions in light of how it and other state agencies still deal with parents in other tragic circumstances, especially when medical mistakes made during or immediately after birth lead to devastating consequences.

Time and again, parents of children born with defects as a result of medical negligence are dragged for years through the legal process and faced to endure the trauma and expense that court action involves. How often do we see parents of a catastrophically injured child emerging from court to explain how they had to make heroic efforts and to fight for years for a just settlement of their claim for damages?

According to Ernest Cantillion, a leading solicitor based in Cork, the State has a “deny and defend” policy which means cases can drag on for years. It also leads to massive payments to lawyers in medical negligence cases.

In one case last year, the State Claims Agency (SCA) paid out over €1.1m in legal fees to a plaintiff’s lawyers and €450,000 to its own lawyers to handle the case.

According to Mr Cantillon, the only way to solve this dilemma is to make it mandatory for healthcare professionals to admit their mistakes from the outset, with a criminal sanction applying if they fail to do so.

Speaking in the aftermath of a case involving a boy who suffered brain damage during birth, he said: “We spend years seeking to prove what the health professionals, and their representatives the State Claims Agency, know from the outset.

“If a patient is told first day what happened, and why it happened, he/she is firstly less likely to sue and, if he/she does sue, he/she will be far more reasonable to deal with. All of these costs would not, and could not, have been incurred, if such a policy was in place.”

The SCA, which processes claims for hospital injuries, denies it is at fault and lays the blame at plaintiff lawyers who are disinclined to use mediation to settle actions.

But that misses the point. If the HSE and the medical practioner involved admitted mistakes at the start a huge amount of trauma for the family would be avoided.

The new policy adopted yesterday in the case of child deaths should also be put to use in medical negligence cases. No parent should have to suffer more than they already do when a new-born child dies or suffers catastrophic injury.

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