Medical Negligence

Medical injuries

Being the victim of negligent medical care can be particularly distressing, in our experience, but rest assured, if you have suffered a loss due to negligence and/or a defective medical device, you are entitled to a full explanation and to adequate compensation.

Without legal intervention, unfortunately, you may find it difficult to access information about what happened to you. Disclosure is not the norm, sadly. Many people go to court to access the truth, and to prevent what happened to them from happening to others.

The negligent practice of a hospital, healthcare practitioner, laboratory or other facility can result in misdiagnosis, to take one example. This can lead to delayed medical treatment, and such delays can impact adversely on health outcomes. Medical practitioners have no legal duty to disclose significant information to patients, although draft legislation has been in preparation for some time. Had a statutory duty of candour been in force in recent years, some of the worst failures to disclose cancer misdiagnosis might have been avoided.

Cancer care

Ireland has the third highest rate of cancer in the world, ranked only behind Australia and New Zealand, according to a World Health Organisation report. While cancer death rates here have continued to fall over the past 25 years, high profile failures in cancer testing have dominated the media in recent years. While no medical testing, including cancer screening, is perfect, and the claimed accuracy of the cervical cancer screening programme is only 75 per cent, the continuing failures of CervicalCheck beggar belief.

Approximately 3,000 women in Ireland have been diagnosed with cervical cancer since 2008. Around half of these cases were notified to CervicalCheck, the national screening programme of the Health Service Executive. An internal audit established that laboratories had failed to correctly read slides in 220 cases (now 221). Doctors neglected to inform women of these failures. The scandal only came to light after one of the women affected, Vicky Phelan, went public.

209 of this group of 221 developed cervical cancer, which might have been avoided had their smear tests been read correctly and had they been notified by the HSE in a timely manner. As of February 2019, twenty one women had died from their disease, and eighteen remained in treatment. Many of the women required highly invasive treatment – 65 had radical hysterectomy – and most suffered significant side effects, including infertility.

Subsequent CervicalCheck failures continued to be covered up, this time around HPV screening, a second line of testing in cases where low grade cellular changes have been found. Quest Diagnostics, the US for profit laboratory under contract to CervicalCheck to do 90 percent of its testing, failed over a number of years to test smears in a timely manner. In July 2019, HSE finally admitted that Quest had carried out HPV testing on 11,500 out of date samples, a massive increase on the 800 cases initially reported. Women were not notified in a timely manner, and, again, it took one of those affected to expose this second, major debacle.

Around 4,000 women have been recalled for repeat smear taking, but whether the other 7,500 women affected have been informed of their flawed HPV tests is unclear. Meanwhile, in a separate audit of cervical cancer screening in Ireland, over 1,000 women are set to receive their results from the Royal College of Obstetricians and Gynaecologists in London. A review into the screening history of every woman diagnosed with cervical cancer since the beginning of the CervicalCheck programme in 2008 has found that there were missed opportunities to prevent or diagnose cancer earlier in the cases of 159 women.

Maternity care

Maternity care has been the Cinderella of the health service for many years, under resourced and under developed. Hospital overcrowding coupled with an acute shortage of midwives and obstetricians militate against a high quality service. Fragmented care is the norm. Postnatal care levels are among the lowest in Europe.

While many women feel their hospital care during birth was first class, in some cases, treatment has on occasion resulted in injury or even death. Concern is growing over the rise in maternal deaths in recent years. In the case of eight women who died in the Irish maternity services between 2008 and 2014, coroners eventually ruled that their deaths were due to ‘medical misadventure’. As Deputy Clare Daly told the Dáil, their deaths were avoidable.

Autonomy is another area that is problematic. The ‘active management’ of women in labour, a blueprint for medical intervention to accelerate labour that assumes patient consent, is widespread. This has contributed to a culture in maternity care where your right to make decisions about your care may be overridden by staff. Surveys done by the Association for Improvements in Maternity Care show that non-consensual intervention during pregnancy and labour is a major issue.

Transvaginal mesh injuries

Awareness of mesh injuries is growing worldwide. Particular concerns have emerged in relation to the use of what is termed ‘transvaginal mesh’, a net-like plastic material (polypropylene) that is or was used routinely to support weakened pelvic and bladder tissue. In July 2018, the Department of Health announced that it had asked the HSE to halt the use of all procedures involving transvaginal mesh in public hospitals. Officials were briefed by the Irish Medicines Board (now the Health Products Regulatory Authority) as far back as October 2012.

Many women who have undergone transvaginal mesh procedures have developed serious side effects. Reported complications include chronic inflammation, chronic pain, and incontinence. Should scar tissue embed itself into the mesh, this may result in pain, infection, protrusion through the vaginal wall, and pain during sexual activity. The Irish government has ruled out a redress scheme for such injuries.

Mesh removal is highly complex, unfortunately, and material may prove impossible to remove completely.

Transvaginal mesh is similar to other mesh implants classified as medical devices and used for procedures such as hernia repair. Because of this similarity, transvaginal mesh was approved under a Food and Drug Administration pathway that did not require testing on patients. The FDA recently recalled the mesh that is used in the transvaginal treatment of pelvic organ prolapse. An estimated 100,000 lawsuits are pending in the United States.

Ireland recently ruled out a redress scheme for transvaginal mesh injuries.

Cosmetic surgery and defective medical devices

One area of medicine that has been shown to be particularly problematic is cosmetic surgery. While many people may have had positive experiences of such treatment, lack of regulation has led in some cases to negligent practice and serious injury.

Defective medical devices, such as metal on metal hip implants, prescription drugs, such as opiates, and consumer products, such as talcum powder, have all been shown to cause significant adverse effects.

Fatal injuries and inquests

Ireland is the first European country to legislate specifically for mandatory inquests into maternal deaths. Among the core measures of the 2019 Coroners (Amendment) Act are:

  • mandatory reporting of all maternal deaths, stillbirths, intrapartum deaths and infant deaths
  • mandatory inquests for all maternal and late maternal deaths (with no discretionary loopholes)
  • stronger powers for coroners, including compelling witnesses to attend the coroner’s court; directing the production of ‘any document, article, substance or thing’ deemed relevant; and powers of entry to premises to ‘inspect, copy, take extracts from or seize documents’
  • legal aid for families seeking inquests into maternal deaths

The act, which extends to both private and public hospitals, followed a five-year campaign by activists. Following the death of Bimbo Onanuga in 2010, Colm, acting on behalf of her family, took legal action to obtain an inquest into her death. That inquest took three years and resulted in a verdict of medical misadventure. Eight high profile maternal deaths followed. In each of these cases, the hospital’s failure to notify the coroner led to public unease. These deaths should have been reported because they raised issues of potential medical error, and, under the 1962 Coroners Act, were unnatural. The verdict, in each of the nine cases, was that the death of the mother in childbirth was avoidable.

That inquest took three years and resulted in a verdict of medical misadventure.

Another area where we hope to see progress lies in the area of stillbirths. At present, parents whose child is stillborn are unable to seek the same recourse as families whose child is born alive but dies after birth. If adopted, the Civil Liability (Amendment) Bill 2018, otherwise known as Conor’s Law, will bring about greater equality between these parents before the law. Mignon and Derek Underwood’s son, Conor, was stillborn in Wexford General Hospital in September 2012. Mrs Underwood sued the HSE, claiming the death of her son and the injuries she herself sustained were due to medical negligence, in particular, the hospital’s failure to diagnose pre-eclampsia in a timely manner. The case settled and the hospital apologised for the shortcomings in its care. If Conor’s Bill is passed into law, families whose child is stillborn due to medical negligence will be able to seek compensation for psychological distress.