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A solicitor for Rebecca Collins, who last week got an apology from the HSE after 16 years. The Pudding
legal strategy

HSE apologies: Advocates call for 'change of culture' to stop long court battles for families

Solicitors said the HSE’s actions on numerous medical negligence cases harm the ‘healing process’ for families.

THE NEW CHIEF executive of the HSE has been challenged to “change the culture” over how the organisation approaches legal cases taken by families.

Medical negligence solicitors alleged to The Journal that the HSE’s strategy on cases remains “deny and defend”, often until a “trial date is on the agenda”, leaving some vulnerable families waiting up to a decade or more for answers.

One, Diane Treanor from Dublin firm Coleman Legal, said despite the HSE apologising to 49 families affected by failures in children’s audiology services in 2018, she has found a number of legal cases stalled since.

“They reviewed the audiology services in and around Roscommon and Mayo and they fell well below the standard. A lot of our clients are children and they were greatly affected. The HSE apologised but I still have cases ongoing on my desk.

“Some of them are four years in and I’m having to motion them [to progress the cases]. These cases have dragged on. I don’t have any cases on my desk that were settled early.”

Treanor, who has also represented CervicalCheck patients, said she has been shocked at the treatment of many people who have taken cases against the HSE.

“These women who are seriously ill are being dragged down to court to fight their corner, when they shouldn’t be. It’s just an absolute disgrace with the way the culture is and that it’s allowed to stand.”

“The approach of the HSE is to deny and defend really any clinical negligence claims,” she alleged.

Bernard Gloster replaced Paul Reid as the new chief executive of the HSE last week, having previously served as the lead for child and family agency Tusla.

It is hoped that the recently passed Patient Safety Bill will help address issues surrounding the process, including through its ‘open disclosure’ mechanism when a patient has died. Former Labour Party leader Alan Kelly has called the bill “the most important piece of legislation” that he has ever worked on.

The Bill is to provide for open disclosure of completed individual patient requested reviews of their cancer screening by the HSE. Its overarching intention is to embed a culture of open disclosure in the health and social services.

‘Bonkers’

But Cian O’Carroll, who represented campaigner Vicky Phelan, was critical of one element of the legislation which he said would “protect any disclosure that’s made to a patient so that it can’t be used in litigation or in the court setting”.

“If it’s not admissible, that’s bonkers as a change in the law.”

O’Carroll said, as seen in the recent nursing homes charges controversy, that the State often adopts the position of “thinking they’re entitled to act like a private company protecting their shareholders”, which the solicitor fundamentally disagrees with.

“They’re a mutual organisation, they’re like a cooperative. There’s an obligation to behave in a different way, which is a morally appropriate way. They don’t do that.”

Solicitors who spoke to The Journal noted how apologies from the HSE have become an increasingly regular feature in recent times, covering a range of cases taken by members of the public.

Last Wednesday, the HSE, along with University Hospital Limerick, delivered an apology in the High Court to Rebecca Collins, who gave birth to a stillborn baby in the hospital 16 years ago.

The apology from the health service and the maternity hospital was read in court and liability was admitted.

A month earlier, a family criticised the HSE for the “gruelling” legal battle following the 2015 hospital death of their newborn daughter.

Laoise Ó Scolaí died after her heart was accidentally pierced by a doctor, following her premature birth and that of her twin brother Cuán in the Coombe hospital at 28 weeks on 22 January 2015.

Each baby had a collapsed lung and required a procedure to relieve it which involved a drain being inserted into the baby’s chest, but an inquest in 2017 heard that the doctor who carried out the procedure was not aware of the protocols for carrying it out on a baby as small as Laoise, who weighed only 2lbs.

At last month’s sitting, the High Court heard the matter had been settled for “substantial sums”.

Her father Cóilín was scathing about the events, alleging that the family was “lied to from the moment Laoise died”. 

‘Legal strategy’

Stuart Gilhooley, from HJ Ward Solicitors, who represented the Ó Scolaí family, pointed to reports in January when allegations emerged that the HSE and government departments had been maintaining a longstanding “legal strategy” over nursing home charges.

“We do know from the HSE’s memo a few weeks ago that there’s a policy within the space of not dealing with certain cases until they have to be dealt with, until the time was right and not to admit liability,” he said.

Gilhooley summed up the stance from the HSE as being one where, “you deal with it when you have to deal with it – or do a deal when the case is coming up and there’s a trial date”.

That certainly is my experience in that there’s reluctance to make a decision to settle a case or to admit liability. 

“I think in a lot of cases, an admission of wrongdoing and an explanation of wrongdoing is so, so important to helping the healing process begin. If matters were admitted more frankly, and more openly and earlier, then that would save [the HSE] a lot of litigation, because I think some litigation is definitely taken because people want answers rather than necessarily because they want compensation.”

However, there can be legitimate reasons for why a medical negligence case may not be dealt with as quickly as might be expected, Gilhooley added.

“Sometimes the case for the plaintiff isn’t always entirely clear either and sometimes the medical reports or the actuarial reports and other extra reports that are required to determine a case’s worth, are not there.

“It’s not always the fault of the HSE that they can’t deal with a case earlier than they would like to – but I do think there’s probably a tendency to leave things longer than they need to be.”

Treanor said that families having to go through the “long, hard journey” of the legal system can also delay them accessing key medical equipment for a loved one who has suffered debilitating injuries, as they often don’t have the finances to cope.

“Early acknowledgments from the HSE would allow them to have access to equipment and seek the best possible treatments without having to go through litigation,” she said.

“Litigation is already a very daunting and distressing thing for any family.”

Improvements around investigations 

There are signs of improvements to aspects of how hospitals handle potential negligence cases where a patient has been left seriously or fatally injured, according to Gilhooley.

These centre around the investigations hospitals conduct in light of a serious incident.

“I do think that investigations in hospitals has improved and you will see, certainly proper investigations take place. They’re not always necessarily independent ones – as they’re carried out by the same medical team within the same hospital – but at least they are investigations that will provide some answers to what went wrong,” he said.

But it remains a “matter of culture” for Gilhooley.

“The mandatory disclosure rules are going to be very, very important. We do a voluntary disclosure situation now, where . . .  after death, you have a requirement for investigation, but it’s not mandatory. That means that it can be done on the hospital’s terms.

“So I think the culture will need to change and I’m not sure a whole lot more you could do from litigation point of view.

“We do need to ensure matters are dealt with early and proper, fulsome and heartfelt apologies are made.”

HSE statement

When the HSE was was contacted by The Journal, the HSE said its open disclosure policy reflects the primacy of the rights of patients.

“The ethos of this policy is to ensure that the rights of all patients and staff involved in and/or affected by patient safety incidents are met and respected, that they are communicated with in an honest, open, timely, compassionate and empathetic manner and that they are treated with dignity and respect,” it said.

It added that legal cases are managed on behalf of all State authorities by the State Claims Agency.

“Communicating effectively with persons affected in a compassionate, empathic and thoughtful manner, especially when providing information about a patient safety incident, is a crucial part of the therapeutic relationship and if done well can mitigate anxiety and enhance trust in the staff, the organisation and the health care system.”

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