Challenging the professionals - Cian O’Carroll’s legal column

Last week, I noticed a report in the Irish Examiner about a new survey of Irish GPs by the Medical Protection Society (MPS).

Last week, I noticed a report in the Irish Examiner about a new survey of Irish GPs by the Medical Protection Society (MPS).

The MPS insures about 16,000 healthcare professionals in private practice in Ireland and is one of the two major insurers for Irish GPs, so when it speaks out on the attitudes of Irish GPs to medical negligence claims and complaints, I pay attention. The headline finding from the study was genuinely shocking though the paper made little enough of it; 15% of Irish GPs had either been complained to the Medical Council or had received a claim of negligence against them in the previous 12 months. That is one in eight! That is much higher that I would have thought possible. GP care in Ireland is thought to be excellent and certainly my practice would only see a tiny proportion of our medical negligence cases relating to GPs – perhaps the vast majority of this 15% relates to complaints to the Medical Council rather than negligence claims but even at that, it is a huge statistic.

The other reported findings of the survey were even more interesting because they dealt with the attitudes of doctors to the modern practice environment where patients are more likely to complain about the quality of care they receive. Indeed 93% of those doctors surveyed confirmed their view that doctors are now more likely to be the subject of a ‘claim or complaint’.

When asked why they thought patients were more likely to take doctors to task, 43% said that it was due to reduced standards of care but 39% said it was the result of “the tough economic environment”. Here we go again! This is what we hear from the State Claims Agency who defend the (indefensible) HSE and it is such an insult to all the patients who are harmed by the medical care they receive. To put this insult another way, it is to state that patients are taking their doctors to task for poor performance because they are opportunistic and see it as a means to make some money or ‘compo’ to bolster their income in these difficult times. Having attended the funeral this week of a client who was a young wife and mother of three – taken from her family by a cervical cancer that was twice misdiagnosed, I am even less inclined to be polite to this sort of offensive condescension from doctors.

The survey went on to make the finding that because of all this fear of being complained or sued, 80% of doctors practiced defensively. By ‘defensive’ you might be expecting something radical but no - the report went on to detail that 59% of them kept more detailed records, 61% were more careful to ensure follow-up arrangements were in place for patients and 38% carried out more investigations. All in all, this move to ‘Defensive Practice’ sounds more like a tightening up of sloppy practices to me and about time too. I can think of quite a few of my clients who would dearly wish there had been proper follow-up arrangements in place when their cancer test results came in (and went unnoticed or misinterpreted) or that they had been sent for that ‘defensive’ scan rather than just being reassured that they were fine.

However, the aspect of the survey that I most objected to was the overall suggestion that doctors are terribly put-upon by medical negligence claims that are lacking in merit, the sort of thing that better communication between doctor and patient could avoid. It is actually quite difficult to bring a medical negligence action against a doctor or healthcare provider in Ireland. You cannot just take instructions from your client and then fire off a letter to the doctor alleging a poor standard of care resulting in injury to the patient. The superior courts in Ireland have made it clear that it is professional misconduct for the solicitor to do so. Instead, I must first obtain an opinion from another doctor of similar standing and degree of specialty (invariably from the UK). Only if that doctor states that there has been negligence may I even write to the doctor alleging negligence on behalf of my client. I have no difficulty with the rule being so protective of doctors, but given that no legal action can be taken against a doctor without a clear opinion from another doctor that harm was caused to the patient by negligence, it is clearly wrong to suggest that patients can just ‘bang in’ a claim against a doctor. It is for that reason in my experience that in the vast majority of cases, it is only where there has been serious harm caused and only in cases where the negligence of the doctor is quite clear that claims for negligence follow. I would certainly agree with the MPS that legal actions for medical negligence are on the rise but this is a feature in the UK also. A leading urologist in the UK who does a lot of defence reports which means that insurers like the MPS engage him to review the case against doctors and advise on whether the case can be defended or not confirmed that also in the UK there is a noticeable rise in cases being taken against doctors and that the vast majority of them were justifiable cases where serious harm had been caused by the doctor’s negligence. He said these were not ‘opportunistic cases’. He also thought the increase was due to a greater patient awareness of their rights and a move away from the old ways where doctors were not questioned or challenged about the quality of their performance in much the same way as all the professions, from law to the church have come under much greater scrutiny in modern times. This is a societal shift and professions must accept that it is a good thing and here to stay.