Adverse incident, misdiagnosis, medical accident, patient safety incident, medical negligence – there are lots of names for things that go wrong in hospitals and often end up in the courts. However, individual doctors or nurses – or hospital managers – working in the public service are not the ones ultimately brought to book when things go wrong.
That’s because Irish doctors and nurses that work at HSE facilities are covered, insurance-wise, by State indemnity, via the State Claims Agency (SCA). It is a self-insurance model whereby the State bears the financial risk associated with the cost of claims.
We heard a lot about the State Claims Agency during the recent Cervical Check scandal, but how many mistakes are ending up in the courts from our public hospitals? The amount being spent by the State Claims Agency on medical negligence is a strong indicator.
The Dáil Public Accounts Committee was recently told that the State Claims Agency Legal Costs Unit is currently managing 10,909 claims, with an estimated total liability of €3.2bn.
From this, 2,954 cases are expected to be settled for under €1m, 91 claims for between €4m and €10m and 113 cases for in excess of €10m each.
But not everyone wants to go to court when a loved one dies, or they are negatively affected by hospital treatment.
Humans can make mistakes, doctors and nurses too – especially in an under-strain health service – and sometimes it is an unfortunate ‘perfect storm’ of circumstances that leads to tragedy. When things go wrong often families just want answers and an apology, and to know that lessons have been learned from what happened.
Bernie O'Reilly story
That was what Bernie O’Reilly sought when her husband, Tony, died, but she found it difficult to get answers.
Tony, a 50-year-old farmer from Athboy in Co Meath, was diagnosed with bowel cancer and had an operation to remove a tumour on 10 July 2006. Unwell the next day, it was found that he had a leaking tear where the bowel join had been stapled in place.
While repair surgery was carried out immediately, Tony remained seriously unwell. When he died two days later (13 July), his wife and daughter were told it was because of sepsis – something that is a risk in 20% of these kinds of operations. Bernie remembers that the consultant was empathetic.
“He was obviously upset and said he would do everything to help us. There was mention too of a possible issue with the stapling device that had been used.”
The surgeon left the theatre
A bombshell hit a month later when Bernie met with hospital management, however. She had queried why her husband, according to his medical notes, had received three units of blood. The surgeon didn’t appear to know anything about the blood transfusion. Bernie was then told that the surgeon and his team had left the theatre to treat an emergency case during Tony’s operation. It was two months later that the HSE admitted that the surgical team had been gone for two hours and 15 minutes.
“I accepted that sepsis was a risk, but I wanted to know how the two hour lapse had affected my husband,” Bernie says.
Case or no case?
The inquest a year later recorded a verdict of ‘death by misadventure’.
Still wanting answers after three years, spending a lot of money on independent opinion from the UK and running out of time to take a case, Bernie wrote to then Minister Mary Harney, who ordered an external review. Bernie received the final report in 2013 and was shocked to discover that there was only one surgeon on duty that day when there should have been four. There had also been an internal hospital review into Tony’s death in 2007, but Bernie hadn’t been told – that still upsets her.
Ultimately, her counsel advised her that despite independent reports from other doctors in the UK, the evidence wouldn’t be cohesive enough to go forward with the case, so she didn’t.
“They couldn’t say ‘this is what happened’ and none of them would address the area of the surgeon leaving the theatre.”
Her story making things better
Bernie is now on the Patients for Patient Safety initiative set up by the World Health Organisation, where personal stories are used as learning opportunities.
She was asked to join in 2015 when she ‘still had an axe to grind’, but she is not bitter now, she says.
“At that time (2006) open disclosure wasn’t available (see below). People were perhaps honest in their dealings with me, but they were guarded and influenced by insurers. The way it happened was I started out trusting, but as time went on I became suspicious that they weren’t telling me everything.”
But she knows that staff don’t set out to do harm.
“Most people set out every morning to do a good day’s work. For the most part they are horrified when something goes wrong and then they have to face the patient and families. Then you could have someone with 20 years of a career maybe, having done their best every day of their life, who doesn’t go on with that career because they are so upset by what happened. That’s a loss and then they are replaced by a new person coming in who doesn’t have the same experience.”
She sees it as a loss when a health professional gives up their job after an adverse incident – or takes their own life, which has happened, she says.
“When a bad outcome happens it’s often when they’ve been pushed to a point where they’ve been overworked, there aren’t enough staff, constant interruptions, where their attention is taken for that split second where they might make an error. There is always a background to it, so I think to have it criminalised is wrong.”
Jail threats not a good idea
She isn’t entirely happy, therefore, with the way Open Disclosure legislation is heading. She believes it to be going too far by threatening doctors with fines or even jail terms.
“I think Minister Harris has decided to go this (sanctions) route on the advice of civil servants and given the raw emotions surrounding recent (Cervical Check) events. While this is understandable, I don’t think it’s the right road.”
She thinks the Patient Safety Bill, as it stands, is “cold”.
“They are talking about putting a lot of legal stuff into the daily lives of healthcare workers which will grind them down even further. It could terrorise people out of honesty. You want to encourage honesty, not repress it.”
The HSE definition of open disclosure is ‘an open, consistent approach to communicating with patients when things go wrong in healthcare’. This legislation exists since 2013. The HSE is now recruiting educators who will train staff in Open Disclosure and a HSE National Open Disclosure Office is planned.
The State Claims Agency gathers data on clinical claims and costs in order to improve patient safety and quality of care by identifying high-risk areas and training needs. The Clinical Indemnity Scheme (CIS) was established on 1 July 2002 to provide clinical malpractice indemnity to non-consultant hospital doctors (NCHDs), nurses, midwives and allied healthcare professionals. Consultants working in public hospitals were included in the scheme from 1 February 2004. Health professionals in the private sector pay separate indemnity insurance.
Most common clinical claims created nationally 2010-2014:
1. Other (doesn’t fit other categories). 2 .Failure/faulty medical equipment.3 .Failure to diagnose.4 .Delayed diagnosis.5. Unexpected complications following operation/procedure.6. Delay/failure to treat, adverse outcome.7. Unnecessary surgery/procedure.8. Wrong operation/procedure.9. Unexpected complications during operation/procedure.10. Unintentional punch/laceration to organ. The average cost per clinical claim finalised, inclusive of compensation and all costs, was €152,329 in 2010 and €141,813 in 2014.
Claims related to diagnosis, including the categories of delayed diagnosis and failure to diagnose accounted for 19.0% of the 10 most common clinical claims. An Irish Medical Journal report on diagnosis by JFA Murphy says: “Available studies suggest that the diagnostic error rate is between 7% and 17% in hospitalised patients.”
But what happens after a claim has been settled?
“Finalised claims are analysed clinically for ‘lessons learned,” the SCA says, “and risk management suggestions are offered.” Most clinical incidents are related to a series of ‘systems’ problems, the SCA says in a 2017 report. It mentions the ‘Swiss cheese effect’ in risk management where ‘holes in the system’ line up at some point, leading to failure in service.
The Medical Council is the regulatory body for doctors. It only deals with complaints against doctors (not nurses or hospitals). If the Medical Council’s Fitness to Practice committee finds that one or more allegations are proven against a doctor it imposes sanctions, for example:
Censure in writing and a fine.Suspension or cancellation of registration. If a doctor is found guilty of the lesser ‘poor professional performance’ it is not clear what penalties are imposed.
Complaints against nurses are made to the Irish Nurses and Midwives Organization (INMO).
HSE – how to complain
You can do so in several ways including by emailing yoursay@hse.ie or ringing LoCall 1890-424555 or 045-880400, where a HSE staff member from the National Complaints Governance and Learning Team will answer. Or you can make a complaint directly to the Office of the Ombudsman (01-6785222) or Ombudsman for Children (1800-202040 or 01-8656800). The State Claims Agency’s latest report published May 2017 can be viewed on http://stateclaims.ie/2017/05/national-clinical-incidents-claims-and-costs-report-lessons-learned-a-five-year-review-2010-2014/
Adverse incident, misdiagnosis, medical accident, patient safety incident, medical negligence – there are lots of names for things that go wrong in hospitals and often end up in the courts. However, individual doctors or nurses – or hospital managers – working in the public service are not the ones ultimately brought to book when things go wrong.
That’s because Irish doctors and nurses that work at HSE facilities are covered, insurance-wise, by State indemnity, via the State Claims Agency (SCA). It is a self-insurance model whereby the State bears the financial risk associated with the cost of claims.
We heard a lot about the State Claims Agency during the recent Cervical Check scandal, but how many mistakes are ending up in the courts from our public hospitals? The amount being spent by the State Claims Agency on medical negligence is a strong indicator.
The Dáil Public Accounts Committee was recently told that the State Claims Agency Legal Costs Unit is currently managing 10,909 claims, with an estimated total liability of €3.2bn.
From this, 2,954 cases are expected to be settled for under €1m, 91 claims for between €4m and €10m and 113 cases for in excess of €10m each.
But not everyone wants to go to court when a loved one dies, or they are negatively affected by hospital treatment.
Humans can make mistakes, doctors and nurses too – especially in an under-strain health service – and sometimes it is an unfortunate ‘perfect storm’ of circumstances that leads to tragedy. When things go wrong often families just want answers and an apology, and to know that lessons have been learned from what happened.
Bernie O'Reilly story
That was what Bernie O’Reilly sought when her husband, Tony, died, but she found it difficult to get answers.
Tony, a 50-year-old farmer from Athboy in Co Meath, was diagnosed with bowel cancer and had an operation to remove a tumour on 10 July 2006. Unwell the next day, it was found that he had a leaking tear where the bowel join had been stapled in place.
While repair surgery was carried out immediately, Tony remained seriously unwell. When he died two days later (13 July), his wife and daughter were told it was because of sepsis – something that is a risk in 20% of these kinds of operations. Bernie remembers that the consultant was empathetic.
“He was obviously upset and said he would do everything to help us. There was mention too of a possible issue with the stapling device that had been used.”
The surgeon left the theatre
A bombshell hit a month later when Bernie met with hospital management, however. She had queried why her husband, according to his medical notes, had received three units of blood. The surgeon didn’t appear to know anything about the blood transfusion. Bernie was then told that the surgeon and his team had left the theatre to treat an emergency case during Tony’s operation. It was two months later that the HSE admitted that the surgical team had been gone for two hours and 15 minutes.
“I accepted that sepsis was a risk, but I wanted to know how the two hour lapse had affected my husband,” Bernie says.
Case or no case?
The inquest a year later recorded a verdict of ‘death by misadventure’.
Still wanting answers after three years, spending a lot of money on independent opinion from the UK and running out of time to take a case, Bernie wrote to then Minister Mary Harney, who ordered an external review. Bernie received the final report in 2013 and was shocked to discover that there was only one surgeon on duty that day when there should have been four. There had also been an internal hospital review into Tony’s death in 2007, but Bernie hadn’t been told – that still upsets her.
Ultimately, her counsel advised her that despite independent reports from other doctors in the UK, the evidence wouldn’t be cohesive enough to go forward with the case, so she didn’t.
“They couldn’t say ‘this is what happened’ and none of them would address the area of the surgeon leaving the theatre.”
Her story making things better
Bernie is now on the Patients for Patient Safety initiative set up by the World Health Organisation, where personal stories are used as learning opportunities.
She was asked to join in 2015 when she ‘still had an axe to grind’, but she is not bitter now, she says.
“At that time (2006) open disclosure wasn’t available (see below). People were perhaps honest in their dealings with me, but they were guarded and influenced by insurers. The way it happened was I started out trusting, but as time went on I became suspicious that they weren’t telling me everything.”
But she knows that staff don’t set out to do harm.
“Most people set out every morning to do a good day’s work. For the most part they are horrified when something goes wrong and then they have to face the patient and families. Then you could have someone with 20 years of a career maybe, having done their best every day of their life, who doesn’t go on with that career because they are so upset by what happened. That’s a loss and then they are replaced by a new person coming in who doesn’t have the same experience.”
She sees it as a loss when a health professional gives up their job after an adverse incident – or takes their own life, which has happened, she says.
“When a bad outcome happens it’s often when they’ve been pushed to a point where they’ve been overworked, there aren’t enough staff, constant interruptions, where their attention is taken for that split second where they might make an error. There is always a background to it, so I think to have it criminalised is wrong.”
Jail threats not a good idea
She isn’t entirely happy, therefore, with the way Open Disclosure legislation is heading. She believes it to be going too far by threatening doctors with fines or even jail terms.
“I think Minister Harris has decided to go this (sanctions) route on the advice of civil servants and given the raw emotions surrounding recent (Cervical Check) events. While this is understandable, I don’t think it’s the right road.”
She thinks the Patient Safety Bill, as it stands, is “cold”.
“They are talking about putting a lot of legal stuff into the daily lives of healthcare workers which will grind them down even further. It could terrorise people out of honesty. You want to encourage honesty, not repress it.”
The HSE definition of open disclosure is ‘an open, consistent approach to communicating with patients when things go wrong in healthcare’. This legislation exists since 2013. The HSE is now recruiting educators who will train staff in Open Disclosure and a HSE National Open Disclosure Office is planned.
The State Claims Agency gathers data on clinical claims and costs in order to improve patient safety and quality of care by identifying high-risk areas and training needs. The Clinical Indemnity Scheme (CIS) was established on 1 July 2002 to provide clinical malpractice indemnity to non-consultant hospital doctors (NCHDs), nurses, midwives and allied healthcare professionals. Consultants working in public hospitals were included in the scheme from 1 February 2004. Health professionals in the private sector pay separate indemnity insurance.
Most common clinical claims created nationally 2010-2014:
1. Other (doesn’t fit other categories). 2 .Failure/faulty medical equipment.3 .Failure to diagnose.4 .Delayed diagnosis.5. Unexpected complications following operation/procedure.6. Delay/failure to treat, adverse outcome.7. Unnecessary surgery/procedure.8. Wrong operation/procedure.9. Unexpected complications during operation/procedure.10. Unintentional punch/laceration to organ. The average cost per clinical claim finalised, inclusive of compensation and all costs, was €152,329 in 2010 and €141,813 in 2014.
Claims related to diagnosis, including the categories of delayed diagnosis and failure to diagnose accounted for 19.0% of the 10 most common clinical claims. An Irish Medical Journal report on diagnosis by JFA Murphy says: “Available studies suggest that the diagnostic error rate is between 7% and 17% in hospitalised patients.”
But what happens after a claim has been settled?
“Finalised claims are analysed clinically for ‘lessons learned,” the SCA says, “and risk management suggestions are offered.” Most clinical incidents are related to a series of ‘systems’ problems, the SCA says in a 2017 report. It mentions the ‘Swiss cheese effect’ in risk management where ‘holes in the system’ line up at some point, leading to failure in service.
The Medical Council is the regulatory body for doctors. It only deals with complaints against doctors (not nurses or hospitals). If the Medical Council’s Fitness to Practice committee finds that one or more allegations are proven against a doctor it imposes sanctions, for example:
Censure in writing and a fine.Suspension or cancellation of registration. If a doctor is found guilty of the lesser ‘poor professional performance’ it is not clear what penalties are imposed.
Complaints against nurses are made to the Irish Nurses and Midwives Organization (INMO).
HSE – how to complain
You can do so in several ways including by emailing yoursay@hse.ie or ringing LoCall 1890-424555 or 045-880400, where a HSE staff member from the National Complaints Governance and Learning Team will answer. Or you can make a complaint directly to the Office of the Ombudsman (01-6785222) or Ombudsman for Children (1800-202040 or 01-8656800). The State Claims Agency’s latest report published May 2017 can be viewed on http://stateclaims.ie/2017/05/national-clinical-incidents-claims-and-costs-report-lessons-learned-a-five-year-review-2010-2014/
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