Medical professionals lead call to reform medical negligence system

The Irish Medical Organisation (IMO) has called on Acting Health Minister Leo Varadkar to establish a task force for reform of the medical negligence system.

Dr Peadar Gilligan, chair of the IMO consultant committee, said Ireland is the second most litigious country in the world for medical negligence claims.

Dr Henry Finnegan, a GP in Ballinasloe, told the Irish Medical Times that the “current adversarial system only benefits one profession — and that’s the legal profession”.

However. Karen Kearney, a solicitor at Cantillons with extensive experience in medical negligence litigation, said the “system does work, albeit it is long and tedious”.

Responding to the IMO’s call, Ms Kearney said: “I have had the privilege of representing many patients who have been the victims of medical negligence. I have also had the privilege of acting for many doctors. I have also come across a number of doctors who have been sued for medical negligence.

“Firstly, may I say that in representing patients, I have found that the system does work, albeit it is long and tedious. It is long and tedious, not because of the system itself, but rather because of the attritional way in which the indemnifiers of the medical profession instruct their lawyers to deal with such claims.

“Day in and day out we see parents of children who have been brain damaged at birth coming out of the High Court indicating that their children were brain damaged some years ago as a result of medical negligence, and that the case has just settled.

“Well, what light shone upon the representatives of the doctor in the Four Courts that caused them to admit liability and settle the case? Why did they put the parents through the trauma, upset and grief of a protracted litigation, only to settle at the last minute? I know of no good reason, but I can think of a number of bad reasons.

“I pose the query as to what light shone on defendants when they arrive at the Four Courts, four or five years after the negligent event that causes them to suddenly capitulate. Well I think the answer to that is that they realise that the game is up, as it were, and they can no longer obfuscate. They are going to face a judge. They are going to face scrutiny as to what they say and their ‘defend and deny’ policy will be exposed for what it is.

“Hopefully, the new proposed Pre-action Protocols will cause this enlightenment to occur at a far earlier stage in the process than at the steps of the Four Courts. If it does, costs will tumble and the patient plaintiff will have access to justice far speedier and cheaper.

“I have also represented doctors who have made errors. I have also met doctors who have been on the other side of cases that I am involved in. Both sets of doctors have expressed surprise to me as to why the errors that they have committed are not conceded by their representatives.

“The Medical Council, in fairness, brought in a regulation which required doctors to be candid following an adverse incident. It seems to me that doctors are being prevented by their representative organisations from complying with their professional obligations of candidness.

“If doctors were permitted to comply with their ethical obligations (of candidness) and if the representatives sought to address the legal issues expeditiously, the significant legal costs that are incurred would all be avoided.

“If there was no legal system, these victims would go uncompensated. The system does work. It is unfortunately being abused by the representatives of the medical professionals.”