Duty of Candour: Medical Errors: When things go wrong – the lies they tell

By Cian O'Carroll, Thursday, 16th July 2015 | 0 comments
Filed under: Medical Negligence, Personal Injuries.

Once again I find myself writing about the excellent work that Prime Time has been doing on issues relating to poor standard patient safety and care. Last week their follow up story on Portlaoise hospital focused on just three families and how their lives have been so badly damaged by the care they received. It is remarkable how effective it is to talk of the human story rather than focus on statistics and numbers. These three stories can tell us nothing of the true incidence of patient harm in our hospitals but they have the power to create change for good because we are all capable of being moved by human loss and tragedy. If you are interested in these issues and missed the program, you should watch it back on the RTE player.


One of the key issues in the program was what lawyers and doctors call the ‘duty of candor’ and simply means that when the medical system or a medical professional makes a mistake and you are harmed by that mistake, doctors have a duty to tell you the truth, promptly. The HSE and the State Claims Agency (SCA) – the organization that defends the very small proportion of cases that injured patients bring against the HSE – both say that they adhere to this duty of candor and inform patients promptly when an error occurs. This claim is utterly untrue. Indeed as untruths go, it is about as untrue as you could get, it is a whopper of a lie.


Out of hundreds of medical negligence actions that I have worked on, I know of only one case where a doctor openly admitted an error to the patient and another where the Minister for Health apologized to the patient – both were cancer misdiagnosis cases yet despite what you might regard as promising signs of truthfulness, in both cases, the HSE and the SCA defended the case through drawn-out proceedings that caused additional upset to the injured party. So even in this tiny minority of cases, the HSE and SCA couldn’t help themselves from reverting to ‘type’ or from defending the indefensible. And it is not just the HSE and its State defence agency that behave like this. The insurers for private hospitals and the Medical Defence Union who typically insure GP’s and doctors in private practice behave in just the same way.


Prime Time interviewed Dr Peter Boylan, former Master of the National Maternity Hospital and now a regular choice of the HSE for what they describe as external or independent investigations of very critical incidents, typically where a patient or patients have died in the obstetric setting. Dr Boylan has been engaged by the HSE to prepare just such a report on baby deaths at Portlaoise. When asked however about a doctor’s ‘duty of candor’, he said that legislation was needed before it could be implemented. “Why?” I found myself barking at the screen. Why do we need legislation before a doctor can tell his or her patient the truth about their care? Why is this not obvious to doctors?


If I sound intemperate and disrespectful, it is probably because I had just a little too much sadness caused by our health services last week. I started the week ruling a settlement for a woman who knows she has not long left to live due to the negligence of her radiologist in failing to diagnose her breast cancer, I finished the week drafting words of ‘apology’ to be read by a HSE hospital for causing the death of a week-old baby (the same doctors and hospital having vehemently denied any wrongdoing whatsoever right up to the trial including through the Inquest 2 years ago) and in the middle of the week, on Wednesday, I had to sit through a Medical Council decision where Irelands great watchdog of the medical profession exonerated the Galway gynaecologist Dr Declan Egan by acknowledging that even though he acted without consent when he performed a sterilization procedure on a young married woman, he was not guilty of ‘poor professional performance’. They didn’t see fit to explain this remarkable conclusion with what non-medical people like myself would call ‘reasons’. Perhaps a ‘reasoned decision’ would have been a tad more difficult to stand over.


So while the Medical Council at least agrees that a doctor shouldn’t sterilize a woman without first asking her permission or even mentioning to her that such an event was being considered; when the doctor does so, it doesn’t amount to a serious enough lack of competence to merit even the lowliest offence that a doctor can face in Ireland, that of Poor Professional Performance. By the way, in neither of the other ‘fatal error’ cases I mentioned will the doctor be even questioned, let alone sanctioned, by anyone; not by the Medical Council, not by the HSE and not by the Gardai. In the UK, doctors are in prison for negligent manslaughter for considerably less culpability.


The thread connecting both Dr Boylan’s preference for ‘honesty from doctors – but not just yet’ and the Medical Council approach to this week’s sterilisation case is that of accountability. Some people say doctors work under an impossible pressure of litigation, driving them to treat patients defensively while others like myself believe this is codswallop pedaled by those who make money from defending doctors and those who think their vested interest in keeping medicine above accountability in Ireland just as it has always been.


Truth and accountability are two faces of the one coin. If doctors say we can have no truth if there is to be accountability, we must resist any legislation that offers them a form of immunity. Accountability must follow an error and failure to disclose should be an aggravating factor amounting to a criminal offence. The carrot approach has not worked; it is now time for a different and less pandering approach to medical professional accountability.


Cian O’Carroll Solicitors, A Medical Negligence & Personal Injury Law Firm. FREEPHONE 1-800 60 70 80 | WWW.TIPPLAW.COM

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