Dáil told HSE needs €2bn to fund claims into the future

Conflicting approaches from the Health Service Executive and the State Claims Agency in dealing with medical litigation must be resolved to end the continuing practice of lengthy and expensive court cases, the Dáil has heard.

Social Democrats TD Catherine Murphy said the Public Accounts Committee had been told the HSE needed a contingent liability of €2 billion to fund claims into the future.

She said the agency stated on RTÉ that its policy was to admit liability where medical negligence occurred. But that was contradicted on the same programme by solicitor Caoimhe Haughey, who said the agency "robustly defends every case and shows little or no compassion".

Ms Murphy said patients are often forced down the legal route to get answers, acknowledgement and apologies when things go wrong in their care.

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Taoiseach Leo Varadkar said "we need to create a culture of truth in the health service", but added that "it is a mistake if people believe it is as simple as passing a law".

Ms Murphy said that even if open disclosure was in place and cases were mediated, “what assurances are there that the identified failures will be remedied for others in the future? It takes people going public and not signing confidentiality agreements to force this into the public domain.”

She added: “Do we have to continuously have high-profile failures or force people to lay themselves and their personal stories bare in the media or courtroom for our systems to be overhauled?”

Settled or dropped

Mr Varadkar said that 98 per cent of medical negligence cases are settled or dropped and do not go to trial. Those that go to trial are “because facts or claims are contested”.

He added that that the legal profession had a role to play in ensuring cases could proceed more quickly.

Laws needed to be reformed to do this and “where something goes legal there are two sides and both need to work together to make sure that cases are not prolonged”.

The State had legislated for measures including mediation and periodic payment orders, he said. And he said that in the cervical cancer litigation taken by Vicky Phelan, the case against the HSE was struck out while the laboratory that gave an incorrect smear test result settled for €2.5 million.

The Taoiseach added that while there may not have been a legal liability on the State there was a moral liability to ensure she got the information she should have got.

But Ms Murphy reminded the Taoiseach that when he was minister for health, proposed legislation to make disclosure mandatory was rejected, and he set up a patient safety office in his department.

‘True impartiality’

She said that in doing so he had “removed any hope of true impartiality in that office” and failed to heed the World Health Organisation’s advice to implement mandatory open disclosure.

But, defending his approach, Mr Varadkar said there had not been a patient safety office before he set one up.

The Taoiseach said that the duty of candour and open disclosure were already “part of the guidelines of the Medical Council for ethical practice”. He insisted “the guidelines are not optional and doctors can be struck off for not following them”.

He said open disclosure had been HSE policy since 2013 and staff could be disciplined for not following it. It was part of the programme for Government to “proceed with voluntary open disclosure for all errors and mandatory open disclosure for those most serious errors – serious reportable errors”.