Opening up to patients could lead to fall in litigation costs

One of the most common issues raised by patients with this writer over the past year relates to efforts to obtain information from the health system about their treatment.

Particularly when things go wrong, the business of finding out what happened and why, and whether mistakes were made, often appears to become a battleground between patients and their families on the one hand and healthcare professionals on the other.

Litigious society
Sorry seems to be the hardest word in such situations, as much because of our litigious society and adversarial legal system as from any reluctance on the part of staff to be frank.

The international controversy that followed the death of Savita Halappanavar might never have happened had her husband, Praveen, received answers to the questions he sought in the immediate aftermath of her death.

But then, as numerous reports have shown, Savita would never have died had she received proper standards of care at University Hospital Galway.

Few medical mishaps are pored over in such detail as those that led to the death of Savita.

For most families, finding out what happened to a loved one is a prosaic trail involving meetings with hospital clinicians and administrators, endless correspondence and frustrating appeals processes.

Few options
Aside from the Ombudsman's office, there are few options available to aggrieved patients other than the law courts.

It is generally only when difficult medical negligence cases go to trial that the rest of us get a glimpse of what is going on in the health service.

But only a tiny fraction of cases make it to open court, and are reported on. Because of the veil of secrecy that exists, it is difficult to know whether the system learns from the mistakes made, so that repeat errors can be avoided.

In Savita’s case, for example, we know that some years before she died at University Hospital Galway, another woman patient suffered a very serious, though ultimately non-fatal, case of sepsis in the same hospital.

Arguably, if the lessons learned from this case had been ventilated and disseminated more widely, the latter tragedy might not have happened.

Different tack?
But what if the Irish health system were to take an entirely different tack in response to medical accidents? What if the details of mishaps were to be disclosed, also to the patients affected, as soon as possible?

Would this lead to a rise in litigation, or a fall because most patients leave satisfied with full disclosure and, if required, an apology?

For some years now, lawyers working in the area have been calling for the introduction of a “duty of candour” within the legal system.

Many of them have processed claims by patients over long years under our current adversarial system, and know the suffering and inconvenience this causes their clients.

On the other side, doctors and other healthcare professionals know only too well the legal hazards they face.

The soaring cost of indemnity insurance to protect against claims tells its own story, and there is a real concern that crucial medical decisions are increasingly being determined by legal pressures rather than what is best for the patient.

A recent conference organised by lawyers working in the area appeared to show that candour is working elsewhere. More than a decade ago, the University of Michigan health system moved from a policy of “deny and defend” to one where staff “apologise and learn when we’re wrong, explain and vigorously defend when we’re right and view court as a last resort”.

Five years later, the average litigation costs had been more than halved, claims were processed far quicker and insurance reserves were reduced by over two-thirds.

In the neighbouring state of Illinois, university health administrators adopted a similar approach. They required patients' incidents to be reported within 15 minutes and, where mistakes occurred, provided for an apology with remediation, such as the waiving of medical fees for the patient. Doctors faced possible fines of up to $50,000 if they failed to report an incident which resulted in a lawsuit or claim, but nuisance claims were vigorously contested.

Since candour was introduced, the number of incidents reported has soared, making it easier for the hospital to identify where mistakes are occurring and how to fix them. Yet the number of claims made is down by 50 per cent and very few end up in court.

Would it work here? At present, only one in eight hospitals claims to have a policy of open disclosure.

The HSE and the State Claims Agency are tentatively piloting a policy of open communication in two hospitals, but it will take some years before the results are known.

Five years after the Commission on Patient Safety called for legal protection for open disclosure, this hasn’t yet happened, though the forthcoming Health Information Bill may address the issue.

All involved acknowledge that a major shift in culture is involved and the fear of litigation remains uppermost in the minds of staff.