The mother of a brain damaged girl has criticised the State Claims Agency for delaying the settlement of her daughter´s claim for severe birth injuries.
Alex Butler (10) from Dunmore East, County Waterford, was born at the Waterford Regional Hospital in April 2005, “blue and lifeless” after her delivery had been mismanaged and she had been deprived of oxygen in the womb.
Alex was resuscitated, but is tetraplegic and normally confined to a wheelchair. Only through the efforts of her parents is Alex capable of walking a few steps, but she will require full-time care for the rest of her life.
Through her mother – Sonya – Alex made a claim for severe birth injuries against the Health Service Executive (HSE), her mother´s consultant obstetrician John Bermingham, and the locum Mahmud Khbuli who had failed to identify the need for an emergency Caesarean Section when Alex´s foetal heartrate dropped.
The HSE admitted liability and the case against the two doctors was dismissed. The family received a €1.4 million interim settlement of compensation in 2013, and the claim for severe birth injuries was recently heard once again at the High Court for a final settlement to be approved.
Even though liability had been admitted and an apology read out to the family at the start of the proceedings, it took eighteen days for the State Claims Agency to agree to a €9 million final settlement of the claim for severe birth injuries – provoking Alex´s mother to describe their attitude as “disgusting”.
“They fought tooth and nail” Sonya told the press after the settlement had been approved. “They basically want Alex to have an existence, not a life. They want her to scrape by with the bare minimum rather than her having the life that she should have had.”
In response, the State Claims Agency issued a statement which read: “The State Claims Agency recognises that clinical negligence cases involve patients who have suffered enormous trauma and pain. The Agency is acutely conscious that it has a duty to act fairly, ethically and with compassion in all its dealings with these patients and their families.”
The statement concluded by attacking the lack of a structured settlement system: “The Agency has frequently stated that the current legal system for resolving medical negligence cases is not fit for purpose and has been to the forefront in introducing reforms to make the process easier for the families involved.”
According to figures released by the State Claims Agency, health service medical negligence claims against the HSE have almost doubled within the past five years.
The State Claims Agency recently reported that last year 936 health service medical negligence claims were lodged with the High Court – almost double the number reported in 2010. In addition to the new health service medical negligence claims, the State Claims Agency is already dealing with more than 3,000 historical claims dating back to 2013 or earlier, and a further 218 claims have already been lodged this year.
However, the State Claims Agency´s figures do not tell the whole story. The 936 health service medical negligence claims fail to take into account claims issued in the District Courts and Circuit Courts, or public liability claims for accidents to hospital visitors and employer liability claims when healthcare workers have been injured working in – or on behalf of – Irish Hospitals.
The number of health service medical negligence claims could continue to rise given the recent high-profile issues with the nation´s maternity services. The damming Hiqa report into failings at the Portlaoise Hospital prompted HSE chief Tony O´Brien to call for a “clear-out of uncompassionate staff”, but Health Minister Leo Varadkar is under the impression that “wall of silence” is responsible for the substantial increase in health service medical negligence claims.
Minister Varadkar has criticised an “open disclosure” initiative implemented in 2013 by the HSE and State Claims Agency. The initiative was failing to work the Minister said because hospital managers were failing to engage with patients who had a negative experience in Irish hospitals, and the patients were going to the courts to get answers to what went wrong.
“When something goes wrong, it’s OK to say that you’re sorry about what happened”, the minister commented. “It does not mean you’re accepting liability. There is a never a good reason to conceal the truth from a patient or their family once the facts are known. Aside from making sense from a human point of view, it’s the right thing to do financially”.
New legislation is being drawn up by the Department of Health to reinforce the policy of open disclosure so that healthcare workers can provide information to patients and their families without prejudicing future health service medical negligence claims. While the legislation is being drawn up, the number of outstanding health service medical negligence claims continues to increase.
The State Claims Agency has said that a consistent set of guidelines should be compiled for birth-inducing drugs to prevent more Syntocinon birth injury claims.
Syntocinon is the brand name in Ireland of oxytocin – a synthetic drug that is frequently used in maternity wards to induce labour and accelerate contractions. The benefits of Syntocinon are that the drug reduces the time spent in labour, prevents excessive bleeding and helps the womb to contract after childbirth.
However, when Syntocinon is administered, both mother and child need careful monitoring to observe any signs of an adverse reaction or foetal distress. Oxytocin is one of the top ten “high-alert medications” in hospitals, and the death of four babies at the Portlaoise Hospital has been attributed to the lack of adequate monitoring.
Children who survive the accelerated contractions have been known to suffer brain damage, and among a series of recent Syntocinon birth injury claims was one in February this year, in which an interim settlement of birth injury compensation amounting to €2.32 million was approved by the High Court.
The State Claims Agency – the authority that pays out when Syntocinon birth injury claims are resolved – recently conducted a study into the use of oxytocin in Irish hospitals, which showed that there is a lack of consistency in how the drug is administered and how the health of mothers and their babies is monitored.
The report revealed that staff at one maternity unit had no guidance on the drug´s use and that at another staff had to refer to a checklist. Thirteen hospitals had similar guidelines – although not entirely consistent, five hospitals had introduced protocols, three had introduced procedures and six relied on policies. Two of the hospitals provided no guidance at all on the monitoring of mothers and babies, and one failed to advise nursing staff on the dosage of oxytocin that should be administered.
Mary Godfrey – the clinical risk advisor at the State Claims Agency – said that the results of the survey were alarming and called for a consistent set of guidelines to be compiled for all birth-inducing drugs to improve outcomes for mothers and babies, and to prevent more Syntocinon birth injury claims being made against the state.
However Ms Godfrey failed to comment on an important area of the report which revealed “No service obtains explicit written consent from women prior to starting them on the drug.” Informed consent is a vital issue for the State Claims Agency to address if it genuinely wishes to prevent more Syntocinon birth injury claims.
The total of Garda compensation for assault settlements paid in 2012 amounted to €6.7 million according to figures revealed under the Freedom of Information Act.
The figure brought the total value of Garda compensation for assault settlements since 2000 to over €13.4 million and, among the 121 cases detailed, the most common complaints were soft-tissue injuries, post-traumatic stress disorder and back injuries.
All the injuries sustained by Garda officers were as a result of malicious acts of violence and included a Garda who was struck on the head with a bottle, three cases where Gardai had suffered from depression after being threatened with shotguns and six incidents in which Gardai were injured by human bites.
The second highest ever award of Garda compensation for assault was made last year – a Garda receiving just under €790,000 for back injuries and post-traumatic stress disorder following an assault – but less than the €990,000 award made to a Garda who was shot in the knee in 2008.
Earlier this month, an award of €45,000 compensation for Garda injuries was made in the High Court to Garda Bernard McLoughlin, after he sustained injuries to his hip and leg after being involved in a ramming incident in which his friend and colleague was killed.
Commenting on the Garda compensation for assault settlements, John Parker – president of the Garda Representative Association – said “while the injuries contained in the Garda database were at the extreme end of the assaults suffered by Gardai during the course of their duties, they underlined the “high-risk work” of members of the force”.
Last year, the Government approved proposals for a revised Garda compensation scheme which would enable the State Claims Agency to administer the scheme on behalf of the Garda Commissioner. The proposals aim to reduce the length of time injured Gardai have to wait for Garda compensation for assault settlements and it is expected that the revised Garda compensation scheme will save the State about €3 million annually in reduced legal fees and administrative costs.
The State Claims Agency has forecast that compensation claims against the State for hospital negligence could increase by more than a quarter in 2012.
Writing in the Clinical Indemnity Scheme newsletter, Ciaran Breen – Director of the State Claims Agency – commented that “It appears that people, injured as a result of a medical negligence event, are more likely to sue doctors, dentists and hospitals in these more difficult economic times” after attributing the increase on the economic downturn.
Mr Breen´s comments were in complete contrast to those made by Patricia Byron – Chief Executive of injuriesboard.ie -after the Injuries Board Interim Report was released last month, which saw only a 4.1 percent increase in claims over the first six months and not the “recessionary spike” that had been predicted. However, both public officials mentioned that there had been a significant increase in claims related to the DePuy hip replacement recall.
As 345 compensation claims were made against the State in the first six months of 2012 (as opposed to 542 in the whole of 2011), and the Statute of Limitations expired in August 2012 for many victims of the DePuy hip replacement recall, Mr Breen´s outlook may appear unjustifiably depressing. However, some compensation claims against the State are finding their way to court long after they might previously have been time-barred.
In July this year, the Supreme Court upheld a High Court judgement in favour of Olivia Kearney who, forty-three years beforehand, had undergone a symphysiotomy procedure which the High Court determined was “entirely unjustified and unwarranted”. Should the remaining two hundred survivors of the symphysiotomy procedure be allowed to make compensation claims against the State, Mr Breen´s forecast could be very conservative indeed.
Compensation claims against the State for hospital negligence represent a small number of claims managed by the State Claims Agency – the majority are for public liability and employer liability – but account for almost 90 percent of the value of claims each year. In 2011, the value of the 542 compensation claims against the State for medical negligence amounted to 860 million Euros.
According to figures recently released by the National Treasury Agency, compensation payments made by the State for personal injury, property damage and clinical negligence claims rose by 46 per cent in 2010.
The amount of compensation paid out by the State last year totalled in excess of 93.2 million Euros; however the total estimated liability on outstanding claims is fast approaching 1 billion Euros.
The massive leap has been attributed to an increase in civil actions for malpractice against hospitals and medical practitioners, which for the first time has become the responsibility of the State Claims Agency rather than the Health Service Executive’s.
Speaking last September, Minister for Health Mary Harney commented on the growing trend of clinical negligence claims, stating that the failure to protect patient safety in hospitals was having economic as well as human consequences. During 2010, the State Claims Agency resolved 1,690 claims, but at the end of the year still had 4,114 claims outstanding.
The State Claims Agency has already paid out 20% more in compensation in the first eight months of the year compared with the whole of the 2009. The State Claims Agency had already paid compensation of €59.9 million up to August 2010, compared with total compensation payments of €48 million in 2009. At the current rate, the Agency will make compensation payments of nearly €90 million in 2010. This represents an increase in compensation of nearly 50% in 2010 compared with 2009.
The Minister for Health, Mary Harney, has announced some measures to improve patient safety. The most significant are draft healthcare standards developed by the Health Information and Quality Authority (Hiqa), which has now entered into a public consultation phase.
Minster Harney has said that about 10% of people admitted to hospital experienced an ‘adverse event’, and about 1% of the adverse events would result in injury or death. Speaking about the adverse events, the minister said “Many of them are systemic failings and many of them are avoidable”.
It should also be pointed out that although the rate of adverse events in HSE run hospitals is particularly high, the HSE is not always responsible, such as the recent DePuy recall.
A report today for the Irish Patients Association by the State Claims Agency shows that there are an average of 15,000 slips, trips, and falls in Irish hospitals, using data from the past 6 years. The State Claims Agency data reveals that about 40% of hospital incidents are falls.
About 300 patients fall in Irish hospital showers each year, some of whom suffer fractured bones, although only about 1 percent of patients sustained multiple injuries. Approximately one-quarter of patients who fell in showers suffered either bruising, lacerations or fractures.
Most accidents occur when patients are not under supervision and in at least one Irish hospital poor drainage leaves the shower facilities permanently flooded and therefore slippery. This certainly exposes Irish hospitals to medical negligence claims.
The State Claims Agency (SCA) director Ciaran Breen has backed the group investigating the feasibility of new legislation to allow for annual payments to victims of catastrophic injuries to replace the current system of large lump sum payments.
Speaking in an interview with Michael Brennan of The Irish Independent, Breen stated “We here in the SCA have been advocating that compensation in catastrophic injury cases should be paid by periodic payment order rather than the traditional lump sum because we feel that the transfer of the investment and mortality risk to the State is the proper thing to do.”
A working group chaired by Mr Justice Quirke has been set up to examine of compensation payments for catastrophic injuries can or should be awarded by way of periodical payment orders. The group includes High Court judges, solicitors, barristers, and representatives from various organizations such as the State Claims Agency, Motor Insurance Bureau of Ireland, Department of Justice, Insurance Federation of Ireland, and the Courts Service.
Jim Reilly of Patient Focus has claimed today that international figures show that 4-16% of patients in hospitals are exposed to “potentially dangerous adverse events”. Mr Reilly was speaking at a conference organised by the charity Action Against Medical Accidents. Peter Walsh, chief executive of Action Against Medical Accidents, claimed that more people are killed or permanently disabled in hospitals due to medical incidents than were injured in road traffic accidents.
State Claims Agency data for 2008 reveals that there were 83,661 “adverse incidents” recorded by Irish hospitals, where an medical incident could range from something as simply as slips, trips, and falls to more serious treatment errors such as medication errors.
The figures include both major and minor incidents ranging from slips, trips and falls to medication and treatment errors. The figures also demonstrate how badly exposed the Irish health services are to medical negligence claims and hospital negligence claims.
Data from the State Claims Agency reveal that there were 8,250 ‘medication incidents’ (incorrect dosages or simply wrong medication given to patients), some 5,559 ‘treatment incidents’ (which includes mistakes like leaving surgical swabs in patients’ bodies after operations), and poor documentation (which lead to anything from a simple ‘near miss’ to a catastrophic incident).
The State Claims Agency runs a clinical indemnity scheme for Irish hospitals that paid out almost €50 million in medical negligence claims and hospital negligence claims last in 2009, with an average award of €63,000.