Medical negligence cases tend to set two types of record: for the sum of money awarded and for the time it takes to settle.
The case of 12-year-old Matthew McGrath, who was left paralysed due to poor care provided by Wexford General Hospital, follows this pattern, with a €3.7 million award and an astonishing 11-year wait for an apology.
There have been bigger settlements, but the payout announced yesterday for Matthew is an interim one to cover the next five years. This is because a system of periodic payment orders to replace the old system of final lump sum settlements is expected to be introduced shortly.
The change, which requires legislation, has been a long time coming, but it should greatly improve the situation for people who suffer catastrophic injuries requiring lifelong care. Periodic payments will ensure their needs are met while guarding against windfalls for relatives where they die earlier than expected, as the president of the High Court, Mr Justice Nicholas Kearns, has pointed out.
Blame
It is harder to explain why a case should take 11 years to settle. The legal and medical professions tend to blame each other for these delays. One side blames an alleged “deny and defend” approach by the HSE and the
State Claims Agency
; the other cites an outdated and clumsy legal process.
Medical negligence cases tend to be more complex than other forms of claims that come before the courts. It can also take years for the full effect of a medical mishap to become apparent. And even when liability is conceded there is no fast-track mechanism for processing claims such as exists for non-medical cases through the Injuries Board.
Constructing a winning medical negligence claim is not for the faint-hearted. It may involve commissioning serial expert reports. More often than not, these will have to come from abroad because of an unwillingness among Irish specialists to make findings against colleagues. So there is a significant upfront investment, in terms of time or money, for patients and lawyers, without any guarantee of success.
Making a call on a particular case can also be difficult, and many cases will be settled without admission of liability. The patients get the funds they need but not the apology they feel they deserve.
This was not the case in Matthew McGrath’s settlement, where the HSE offered “sincere apologies” 11 years after the hospital mismanaged his meningitis.
Sub-optimal care
More than anything, his case highlights the huge cost attached to sub-optimal care. Matthew’s case of meningitis went undiagnosed over crucial hours, and there were issues over the administration of a lumbar puncture.
Today, our health service is staffed by vast battalions of temporary, agency and locum doctors and nurses. Privately, more experienced staff have expressed concern about the level of training of some of these workers and their familiarity with the environments in which they find themselves working.
Only time will tell whether the reliance of the health service on this type of labour will result in costly lawsuits.
