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"The Whistleblower"- Medical Mistakes of the Past?

Having seen the awful consequences of most health catastrophes in this state over the past 15 years, I continue to be shocked at the regularity of repetition of such events. Tragically, the mistakes of the past continue to be repeated on an almost daily basis in the Irish Healthcare System.

As we watched the excellent RTE docu-drama "The Whistleblower" the public may believe that such instances are consigned to history and therefore are of little relevance to their own situation, yet nothing could be further from the truth.

Having litigated through each of these health catastrophes including contaminated blood products with Hepatitis C and HIV, unlawful caesarean hysterectomies, it is tragic that the healthcare system in Ireland continues to perpetuate mistakes with awful consequences.

Every week, this firm receives information about new devastating situations, which include cerebral palsy, cancer misdiagnosis, medical misdiagnosis etc, which cause us as lawyers to question as to whether there are any proper risk management processes being introduced, or more particularly whether adequate funding is made available to implement recommendations of countless expert reports and therefore learn from the mistakes that have occurred. The frequency of such mistakes in certain hospitals is shocking in the extreme.

In the past month, we have seen the horrific consequences associated with confirmed cancer misdiagnosis situations. Unbelievably, this is quite a wide ranged phenomenon based upon the number of enquiries received by this firm, where families were motivated to contact us having received confirmatory medical reports obtained on behalf of the HSE that cancer misdiagnosis had occurred. In certain instances, most tragically, people have died and it is now clear these deaths should have been avoided if earlier diagnosis and treatment had occurred.

Against this backdrop of clinical error there has evolved a culture recently perpetrated by the Irish state on your behalf as citizens of this country, of endeavouring to rely upon technical defences to defeat what would otherwise be valid legal actions. This reliance upon limitation periods to prevent innocent victims of medical misadventure and/or medical negligence of having effective access to the courts is certainly not merited in the circumstances of the events that have occurred.

In the future, the reduction in the limitation period for medical negligence actions from 3 years to 2 years will prevent innocent victims having what can only be termed access to justice. The 2 year limitation period was introduced, it would appear, to minimise the state's financial exposure to medical negligence actions, almost contemporaneously as the State took responsibility as the insurer for such actions. This may be considered a laudable objective by the tax payer, but for the patient it is a disaster for the following reasons;

1. The innocently injured patient from the healthcare setting may not be physically well enough for a protracted period of time to instruct a solicitor, which in certain instances has occurred after the expiry of the 2 year limitation period. After that date, no remedy is available to that patient.
2. It may take many months to obtain access to medical record details while precious time is elapsing. It should be remembered that this period is crucial if the patient only presents to his/her solicitor with months to go before the expiry of the limitation period. In certain circumstances there would be no capacity to obtain access to medical record details and instruct an independent expert witness to deliver a report on the standard of care received by that patient within the remainder of the 2 year period.
3. As Ireland has a very tight knit medical community, it is now apparent, that it is necessary to obtain independent expert advice on the standard of care delivered in this country through international experts. Obviously, this eats into the time period available to a very significant extent as all medical record details, scans, x-rays etc. when obtained must be sent to a foreign jurisdiction to obtain an independent evaluation report.

The effect of failing to adhere to the 2 year limitation period can be that a mistake that merited justice through the court system is defeated in its entirety, as a result of a technical defence raised by the state.

Ironically, much more straight forward civil actions, such as ordinary road traffic actions have longer limitation periods, as time does not run against the potential plaintiff when the action is under the auspice of the Personal Injuries Assessment Board i.e. the limitation period almost always exceeds 2 years.

A cynic would observe that it is government policy, or at the very least, it was PD policy to prevent such grievously injured medical or health related plaintiffs having free and unfettered access to the courts system within a reasonable time period. The amendment to the limitation period that occurred was introduced at the behest of the then Minister for Justice in 2004.

To add insult to injury to victims of medical negligence, everyday as lawyers we are required to inform such persons who have suffered at the behest of the healthcare system that their claim or potential claim is out of time or statute barred. As a result of the reduction in the limitation period recently the number of persons who have been informed of this particular technical difficulty that defeats their claim has significantly increased.

It should be emphasised that this branch of medical tort law provides essential information gathering, which is an important avenue by which the healthcare community learns of safety issues. Through the process of discovery, litigation has regularly uncovered information that would not otherwise have been known, such as the health scandals in this jurisdiction.

Ironically, in these days of budget cutbacks, with declining resources to pay inspectors to undertake investigations, the litigation system should become a more vital element in promoting safety and proper standards within the healthcare system. Yet the effect, of excluding persons with a legitimate entitlement from the justice system is quite the opposite.

In addition, the justice system has the ability to improve the lives of injured patients and their families, which is an essential aspect in attempting to right a wrong that has occurred. Many persons who have suffered the most grievous harm require ongoing care, require funds to provide for their very existence and for the state to seek to prevent such entitlements being made available by utilising a technical defence is both unjust and wrong.

Hopefully, we will learn from the mistakes of the past. In order to do so, an essential ingredient is unfettered access to the courts in circumstances where technical defences are to be utilised rarely by the state. It should be remembered that the state, is you and I, and for us to rely on technical defences to defeat legitimate honest citizens, who are grievously harmed by our agents, is I would suspect against our particular wishes.

It should be emphasised, that the events that led to the Whistleblower docu-drama, would be more difficult to discover in today's legal climate than was the situation in the mid 90s. Also, access for many such persons to justice which includes compensation will be impossible to achieve. In many instances, the time period is now further restricted and will be utilised by the state to prevent the general republic knowing what is occurring in the healthcare setting so the culture of concealment will be perpetuated.

Raymond Bradley

Managing Partner

Seeking Health Law Advice

For further information and advice regarding your legal rights and entitlements, please contact Malcomson Law by calling 01 8744422 or complete an Online Enquiry Form. Your enquiry will be forwarded to a solicitor who specialises in Medical Negligence.

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