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.