Sometime ago, a close relative of mine was constrained to have a medical procedure performed at a private medical institution. I sat there filling out all the necessary forms before my relative could be admitted. I have come to understand the importance of reading documents and not simply signing and initialling in specific spaces as pointed out by administrative clerks. I began reading one document that piqued my interest, I read it twice and then laughed as I immediately began thinking of what happens at the public medical institutions versus the private medical institutions. What I held in my hand was a disclaimer notice, this document made it abundantly clear that should the medical consultant in question be negligent in carrying out his duties, then, any proposed litigation would be against the consultant and not the institution.
During the course of my practice, I have brought several actions against the public health system. The actions ranged from negligence to wrongful death which touched and concerned both babies and adults. In the matters that I had conduct of, not once did any of the doctors in question step into Court to defend themselves or their actions, nor, as far as I am aware were they made to contribute to any of the awards made against them. Not only would the Ministry of Health or the specific regional health authority carry the burden of judgements made due to the medical personnel’s negligence, but, all legal fees would also be paid by the authorities. In fact, in February 2022 an article was carried in a daily newspaper which stated that during the course of several years, millions in legal fees were being paid by the South West Regional Health Authority to defend against medical negligence matters. According to the article, it also appeared that the success rate of those defences was negligible at best. These figures are worrying, the funds dedicated to both attorney fees and to pay any court award comes directly from the tax payers. Money which can be better budgeted and utilised for the necessary medicine, equipment and other needs of the health sector is instead used to defend the negligence of personnel.
The same consultants and other personnel that are employed in the private medical institutions are, in most cases, the same personnel which are employed in the public health sector. I have to again draw reference to the disclaimer which I was required to sign at the private medical institution, as, if in principal consultants can agree to disclaim private medical institutions, then, why can’t that be done in public medical facilities. Or, should a full disclaimer be such a strain, why can’t medical personnel who have been found liable for medical negligence, not be mandated to contribute to any awards made by the Court. I am certain that most of these consultants would have some form of indemnity insurance. Consultants, doctors, nurses and most medical staff now have the benefit of contracts, most being short term contracts. These personnel are willing to sign contacts when they perform private work which disclaims the necessary institution, why then have the public health system failed to negotiate such terms in their contracts.
Should these disclaimers become part of the contracts in the public health care system it would have two (2) benefits. It would in some sense ensure that personnel take more care in the manner in which they perform their job and it would decrease the sums that tax payers are paying towards legal representation and court judgements. I am certain that the Ministry of Health may well argue that consultants will refuse to sign any such agreement and will instead opt to work solely with private institutions. If this is the argument, then, the question must be asked as to what exactly is the Ministry of Health doing to address its exposure to legal action. What exactly are the penalties or disciplinary actions faced by consultants or personnel who are found liable to medical negligence. Are they suspended, disciplined or reprimanded in some form?
Sadly, a few years ago I had conduct of a matter whereby a baby died due to the negligence of a public medical institution. The consultants on duty abandoned the high-risk expectant mother as her delivery was going late into the night, the baby was delivered by a junior doctor who lacked experience. The baby became stuck in the birth canal and was starved for oxygen. Unfortunately, the baby only survived for a short time after birth. Had the experienced consultants who were trained and experienced elected to be where they were employed to be, this would not have happened. While no award from the Court could replace this lost of the expectant mother, the consultants themselves never appeared in Court nor am I aware of any disciplinary measures taken.
In cases against public medical institutions, it is usually the public purse which faces the most constraints. The public purse is always affected, despite the fact that the tax payers are not the ones who should be forced to carry this burden. Medical negligence and similar matters are increasing as persons are now more and more aware of their legal rights. It would be interesting to have the Ministry of Health address their plans or policies to address negligence by their personnel.