The Sunday Business PostSeptember 20, 201518 News Focus

‘I walked out of hospi-tal with my son in my arms. He had a tube up his nose. I’d no idea what to do with him.”

Eight years on, Thom-as Hayes recalled his be-wilderment leaving Wa-

terford General Hospital with baby Dylan, who has cerebral palsy as a result of birth injuries.

His son had been delivered by emergency caesarean section on July 22, 2007. Five days later, an obste-trician told Thomas and his partner Jean Gaffney that the birth had been mismanaged and that there would be no cover-up.

Before the birth, Jean had requested a caesarean after a difficult labour with her first child Shauna. The request was dismissed. When labour stalled during Dylan’s birth, a muscle stimulant was administered. Jean’s womb ruptured and Dylan suffered brain damage.

Despite the doctor’s early admission that a mistake had been made, when the couple sought compensation, the HSE and State Claims Agency issued denials and fought the case.

Thomas and Jean had to wait until 2013 before the HSE agreed an €8.5 million settlement midway through a High Court damages hearing. Liability had been admitted a year earlier.

Thomas is still angry about how the case was handled.

He said: “They are playing with numbers, they are playing with peo-ple’s lives and there are little children who have nothing because they are just crunching numbers.”

Dylan’s is not an isolated case. Just last week, Limerick couple John and Joan Mulcair slammed the HSE for waiting six years before apologising for the death of their newborn baby Caoimhe at the then Mid-Western Regional Hospital in 2009.

Last Wednesday, an inquest at Lim-erick Coroners Court returned a ver-dict of medical misadventure. There was evidence a hospital report found Caoimhe had suffered from a lack of oxygen to the brain during labour.

Speaking to RTE Radio 1’s Today With Sean O’Rourke on Thursday morning, John Mulcair said they had

been given no explanation for the late apology.

“It just dragged on and on. They thought we would give up, that we wouldn’t have the courage to keep up, but we did,” he said.

So what explains the HSE’s reluc-tance to own up to mistakes from the start? Or, in a case like Dylan’s, why is an early admission of fault effec-tively swept under the carpet when compensation is sought?

Medical Council regulations require doctors to observe a duty of candour when mistakes are made. And in No-vember 2013, the HSE, in collaboration with the State Claims Agency, issued national guidelines on disclosure. They recommended “an open consistent approach to communicating with ser-vice users when things to wrong in healthcare. This includes expressing regret for what has happened, keeping the patient informed, providing feed-back on investigations and the steps to be taken to prevent a recurrence of the adverse event”.

But advocates for reform say that while the guidelines represent prog-ress they do not stop the HSE from adopting an adversarial approach in medical negligence actions. There is no statutory obligation in Ireland to confess to mistakes – unlike in Brit-ain – and there are no sanctions for hospital administrators who do not come clean.

The firm of Cork-based solicitor Er-nest J Cantillon represented Dylan and his parents in their damages action against the HSE.

“I think there should be a statuto-ry duty of candour that has with it legal implications . . . I think this is a big issue, and it can’t be tackled until there is an obligation to be candid,” Cantillon said.

In his view, there has been progress on paper but, for “reasons of attrition

or whatever” he believed this has been slow to carry through to the courts sys-tem where acrimonious legal battles over serious injuries play out.

“I think a lot of people would be surprised to learn that a system based on justice can have the concealment of truth endorsed by the courts,” he said.

Cantillon’s point is that plaintiffs in medical negligence claims are obliged to set out their stall with some partic-ularity in written pleadings, whereas the defence can throw back blanket denials. He thinks defendants should be legally required to offer an early explanation.

In Dylan’s case, the State Claims Agency made an early settlement offer of €3 million. It was rejected as inadequate. As the court date ap-proached in 2013, arbitration talks led to another offer of €7.5 million; again it was turned down.

‘Regrettable delays’Thomas Hayes recalled: “We said Dylan needed more. All this comes down to is what Dylan needs through his life and how much it will cost for two carers. They were trying to get it down to one carer.

“They actually ended up arguing about wipes – what kind of wipes we were going to get. They argued about whether we needed one battery or two batteries for his electric wheelchair . . . they were arguing about the tiniest little detail,” he said.

In the meantime, Jean and Thomas were Dylan’s sole carers. “I was car-rying Dylan, who was about four and a half stone, on my back to go to the toilet. Then we had a toilet like a potty in the living room. How horrible is that for a child?”

When Ms Justice Mary Irvine finally approved an €8.5 million settlement, she noted it was the second case to come before her that week where a “highly regrettable” delay by the HSE

had added to the family’s stress and fear. Her comments generated con-siderable publicity.

Dylan now has his own en suite bathroom, his own gymnasium, a physiotherapist and a carer; things his family could never have afforded without the settlement.

Thomas believed they would have said, “Brilliant, thanks very much” had they been offered €4 million and a commitment of care on the day they left hospital.

Cantillon’s firm also represented Kerry farmer and former hurler John Flanagan in his action against an an-aesthetist who treated him during an ankle operation in Dublin in 2009.

The patient, then 67-years-old, had high blood pressure. During the procedure he suffered cardiac arrest, was resuscitated with medication, and regained consciousness after five minutes. It was alleged that the anaesthetist failed to recognise that the medication had caused a transitory hypertensive episode and negligently administered a drug called Labetalol, causing a second cardiac arrest. It took 15 minutes to restart Flanagan’s heart.

He remained unconscious and was admitted to Beaumont Hospital, where he was put on life support. In the long term, he suffered cognitive impairment.

Flanagan’s fight for damages was settled at the eleventh hour. Liability was admitted, and he received a sub-stantial sum in April last year on the first day of High Court proceedings.

Three weeks earlier, the legal team for the anaesthetist had tried to settle for a smaller amount and amended the defence in the process. While negli-gence was informally admitted, it was argued Flanagan’s cognition problems were a separate matter related to the early stages of Alzheimer’s disease.

His wife and carer Ellen, a retired teacher, found it an especially tough few weeks. To counter the Alzheimer’s claim, the couple had to scramble to get an appointment with a neurologist in London for the looming court date. Her husband uses a wheelchair.

“None of us were spring chickens. Illness is expensive, but illness and having all this, the agitation that goes with it,” she said. “You don’t know if you’d be better off to just mind your head and let it go.

“We had to go to London twice to get experts to see John. That was very difficult – he never liked flying – even to manage the airport.”

It was a wild goose chase. It trans-pired on the day of the court case that the expert witness for the defence had not said John Flanagan was suffering from Alzheimer’s. The matter settled.

By the end of last year the State Claims Agency had 2,844 clinical claims under management with an outstanding estimated liability of €1.16 billion. Courts Service figures show that 931 medical negligence suits were filed in the High Court last year, down from 1,040 in 2012.

Trench warfareEconomist Moore McDowell told a patients’ rights conference in Dublin two years ago that volunteering in-formation about mistakes could save up to €400 million in legal fees and compensation claims against the HSE.Solicitor Michael Boylan of Augustus Cullen Law agreed that candour can save taxpayers money.

“If you get a situation of trench war-fare where a person willing to settle a case for €20,000 suddenly wants twice that, because the doctor has de-nied responsibility and is adding insult to injury, it will inflame passions and inflate claims,” he said. “Every single insurance company will tell you that the longer a claim remains unsolved, the more expensive it becomes.”

Boylan has long been an advocate of a duty of candour, on the basis that it diminishes trauma for patients and their families. He pointed to research from the University of Michigan Health System as evidence that telling the truth and offering compensation be-fore being sued is a shrewd business decision. Between 2001 and 2007, the average time to process a claim in Michigan went from approximately 20 months to eight months, and costs per claim were halved.

He believed the problem in cases

involving HSE hospitals is that the State Claims Agency has a statutory obligation under the National Treasury Management (Amendment) Act 2000 to manage claims that will result in the lowest achievable financial exposure to the state.

“Is it consistent with the state’s obli-gation to pay out reasonable compen-sation to patients they know they have injured?” he asked. “I’ll be accused of bias because I’m at war with them for most of my working year, but I find it incredibly frustrating.”

But the president of the Irish Hospi-tal Consultants Association, Dr Gerard Crotty, rejected accusations that the State Claims Agency denies and de-fends at all costs. “That’s not actually true. They would settle many cases and avoid the huge delay and expense of legal proceedings. The ones that go to court – or settle just before court – a lot of those are very complex cases where there is genuine uncertainty as to what happened,” he said.

Open disclosureCrotty is in favour of putting open dis-closure on a statutory footing. “There have been studies that show if a doctor is open from the start with a patient, it reduces the likelihood of a patient taking a complaint to a different fo-rum,” he said.

He believed telling the truth not only cuts legal costs, but helps foster an en-vironment where health professionals can learn from mistakes.

Meanwhile, a Health Information Bill is on the cards. Last February, be-fore the Oireachtas health committee, Minister for Health Leo Varadkar com-pared the failure of medics to disclose mistakes to a hit-and-run motoring accident.

The NTMA’s 2014 annual report welcomes the proposed legislation but notes that, “while an apology is an expression of regret that a patient safety incident has occurred, it is not an admission of liability”.

Crotty believed the caveat provides crucial protection for medics. “It’s im-portant that doctors don’t feel inhibited from apologising to the patient.”

But for duty of candour advocates such as Cantillon and Boylan, open disclosure without teeth is a pointless fudge which prioritises the interests of the medical system over patients.

“They have the notion there will be an open disclosure policy, but that open disclosure wouldn’t go further than that. It would be privileged: a protected disclosure that could never be availed of by the injured patient in any subsequent tribunal, whether it be the Medical Council or in court proceedings,” Boylan said. “That, to me, is like speaking out of both sides of your mouth at once.”

Boylan pointed to legislation in-troduced in Britain last November on the back of recommendations in a re-port on the Mid Staffordshire scandal, which involved poor care standards and high mortality rates at an English hospital. British law obliges hospital administrators to report adverse events to patients, that can be relied on in court, or face criminal sanctions.

“That’s where we should be going. You don’t have to reinvent the wheel,” said Boylan.

Sorryseems to be the hardest word

The HSE’s reluctance to own up to culpability in an increasing number of negligence cases is resulting in costly and emotionally draining legal actions. Should a duty of candour be made automatic?

Francesca ComynLegal Affairs Correspondent

It just dragged on and on. They thought we would give up, that we wouldn’t have the courage

Joan and John Mulcair leave Limerick Coroners Court last week, after an inquest into the death of their baby Caoimhe, who died at University Maternity Hospital in Limerick in 2009. The HSE settled out of court Press 22

In November 2014, Britain introduced a statutory duty of candour obliging healthcare organisations to provide all relevant facts about an adverse incident at the earliest opportunity, in person, to a patient in jargon-free terms. The Care Quality Commission, Britain’s independent health regulator, can prosecute breaches of the regulation.

New Zealand, Sweden and Denmark operate no-fault compensation schemes for medical injuries. Claims are assessed by a panel of medical experts without finding negligence. Most claims in New Zealand, where a legal duty of candour exists, are resolved in weeks.

In November 2013, the HSE launched the National Open Disclosure Policy Guidelines following a joint HSE State Claims Agency pilot project at the Mater Hospital in Dublin and Cork University Hospital. Legislative proposals are being developed. The Department of Justice is also preparing new measures to facilitate more efficient processing of medical negligence court cases.

Duty of candour at a glance

Dylan Gaffney Hayes, aged eight, with his parents Thomas Hayes and Jean Gaffney, and sister Shauna at their home in Waterford Dylan Vaughan

Company Announcement

Pictured at the Dublin offices of Arthur Cox, sponsors of this year’s Resolve Ireland Employment Conference on October 6th 2015, are some of the speakers from the event: L to R: Kevin Duffy, Chairman of the Labour Court, Kevin Langerford, Partner in the employment law group, Arthur Cox, Mary Connaughton, Director of CIPD Ireland and Turlough O’Sullivan, Managing Director, Resolve Ireland