Orpen Franks Solicitors
orpen franks solicitors

The culture of ‘Defend and Deny’ needs to change

Category:General News, Medical Negligence News 11 Nov 2014
Pile of medical files

Medical negligence claims are costing the Irish State millions of Euro on an annual basis. Open and honest disclosure would undoubtedly reduce this cost and would result in safer and better quality of care for patients.
The Irish Medical Council (Guide to Professional Conduct and Ethics for Registered Medical Practitioners) states:
“Patients and their families are entitled to honest, open and prompt communication with them about adverse events that may have caused them harm. Therefore you should;

– Acknowledge that the event happened;
– Explain how it happened;
– Apologise if appropriate; and
– Give assurances as to how lessons have been
   learned to minimise the chance of
   this event happening again in the future”

There is a growing culture worldwide for the concept that doctors should make full disclosure of medical errors to their patients. It is very clear that openness and honesty with patients reduces the possibility of a doctor and/or hospital being sued for medical negligence. There is no doubt that a reasonable patient is transformed into a potential litigant where they believe that an error has been concealed. Quite often the patient’s concern relates to the possibility of a similar error happening in the future whereby another patient may also be injured. Dr Timothy MacDonald, Chief Safety and Risk Officer at the University Hospital of Michigan in Chicago reports that the hospital has a policy of full disclosure where errors have been made. As a result, the number of claims against the hospital has reduced year on year. The opposite is the case in Ireland where the number of claims against Irish hospitals and doctors have increased year on year. There is no doubt that an acknowledgment of a medical error and an apology will reduce the possibility of a patient suing a doctor and/or hospital. The ‘defend and deny’ attitude only exacerbates the anger which a patient feels after a medical accident.

It would appear, from practice, that private hospitals and private consultants are more inclined to be open and frank with patients where errors are made and that their private insurers adopt a more pragmatic approach in an effort to reduce legal costs relating to a medical negligence claim. However, the approach which appears to be adopted by the State, as referred to in a Clinical Indemnity Scheme newsletter from 2009 is “… those who are engaged in communication in accordance with an open disclosure policy must not agree at any time that they are liable for any harm caused to the patient or that they were negligent. They must not attribute liability to a fellow health care professional or state that he/she caused harm to the patient or was negligent and finally must not state or agree that the particular hospital/health enterprise was liable for the harm caused to the patient or was negligent”.
Perhaps if an approach of full disclosure and candidness was adopted in the Irish health system, the recent tragedies which have unfolded in the maternity department at Portlaoise Hospital may have been avoided.

The ‘defend and deny’ approach only increases the anger and upset which a patient feels following a medical error. This results in an increase in legal costs and the possibility of significant adverse publicity for a doctor and a hospital when a claim is pursued through the Courts.
The issuing of proceedings against a doctor and/or hospital should be the last resort. Open and honest disclosure of medical mistakes will reduce claims and will ensure a safer and higher quality of care for all patients.

If you require further information please contact Rachael Liston, Partner on:

Tel.:       +353 1 637 6200

Email:rachael.liston@orpenfranks.ie

Orpen Franks Solicitors

28 & 30 Burlington Road

Dublin 4

Ireland

Telephone:+353 1 637 6200

Facsimile:+353 1 637 6262

email:law@orpenfranks.ie

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