In Ireland the HSE is facing a potential financial liability this year of nearly €2 billion for them to deal with the current avalanche of medical negligence claims in the public hospitals and HSE facilities. Last year the Government announced the establishment of an expert group to consider whether there are alternative ways to address medical negligence claims in a more sensitive and timely manner than the current court system of taking the HSE to court. Solutions as part of the plan proposed are;
- Dropping the “deny and defend” that the HSE employs as a default response to a medical negligence case
- Bringing in a mandatory duty of disclosure by the HSE
- Making mediation the norm as opposed to the exception
- Introducing special rules to penalise those who unnecessarily drag out cases where there are clear and workable solutions.
Whatever route the Government takes in the future, patients must ultimately be at the heart of that plan. With the introduction of these changes such as a mandatory dropping of the “deny and defend” policy, widespread use of mediation, the time it takes for cases to be completed would be drastically reduced with major savings in costs and time. The added value being, the level of stress and anger suffered by those and their families can be reduced to the benefit of all. Last year, in the middle of the cervical smear test debacle and the horrendous situation that Vicky Phelan and others were put through, pushed this issue of mediation to the fore. Clearly and very understandably there was massive public anger and upset at the stance the HSE had taken in how it handled this debacle and, in particular, the HSE’s policy of “deny and defend”.
People were very angry that after a complete and utter mess up that the HSE could justify treating their “patients” in such a callous way. On top of that we also heard that, despite the Taoiseach’s statement in the Dail that all cervical cases would be mediated, the High Court confusingly ruled that this was not a binding promise! So, just where does that leave us? Clearly it leaves us in an even bigger mess. Why did the HSE challenge what the Taoiseach said in the High Court – only the HSE knows. To most reasonable people it seems totally farcical. Under a proposed model of full disclosure by the HSE, information about the claim is exchanged at the earliest possible stage, including expert reports. Cases rarely go to court, costs are reduced and cases end much more quickly.
In this post Covid 19 world it is important to remember the advantages of mediation and that certain levels of dialogue can reduce the liability and quantum issues between all parties. One thing is sure that our current system is totally unsuitable to deal with cases involving medical negligence claims, We need reforms to be introduced which will give us a system that is fair, quick, cost effective and most importantly sympathetic to the person effected.
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